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Category: Child Abuse

2024 UT App 52 – In re A.S. – child neglect, photographing genitals

2024 UT App 52 – In re A.S.

 

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S. AND J.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. V.S., Appellant, v. STATE OF UTAH, Appellee.

Opinion No. 20230338-CA Filed April 11, 2024 Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1        On the basis of a set of stipulated facts, the juvenile court adjudicated A.S. and J.S. as being neglected as to V.S. (Mother). Mother now challenges that adjudication on appeal, arguing that the stipulated facts did not support the neglect adjudication. For the reasons set forth below, we affirm.

BACKGROUND
Initial Proceedings

¶2        This is a child welfare case concerning two children: A.S., who was 16 years old at the time of this appeal, and J.S., who was 9 years old. A.S. and J.S. (collectively, the Children) are the biological children of Mother and J.S. (Father).[1] Mother and Father divorced in March 2018, and they’ve had an “ongoing” and “contentious” custody dispute in district court ever since.

¶3        In August 2022, the Department of Child and Family Services (DCFS) filed a petition for protective supervision services, alleging that the Children were “abused, neglected, or dependent children” pursuant to Utah Code section 80-1-102. The petition alleged a range of conduct to support this—most of it by Mother, though with one allegation relating to Father. This appeal is brought by Mother, so we’ll focus on the allegations, proceedings, and rulings relating to her.[2]

¶4        On March 10, 2023, DCFS filed an amended petition relating to Mother, and the amended petition realleged some (but not all) of the allegations from the original petition. Based on the amended set of allegations, DCFS again alleged that the Children were abused, neglected, or dependent. That same day, the juvenile court held a “merged pretrial and adjudication hearing” relating to Mother, and Mother was represented by counsel at that hearing. Mother acknowledged under oath that she understood that she had a right to a trial, that DCFS bore the burden of proving the allegations against her by clear and convincing evidence, and that she had the right to present evidence in her defense. Mother then waived her right to a trial, affirmatively admitted to a specified list of the allegations from the amended petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, “neither admitted nor denied” certain other specified allegations from the amended petition.

¶5        On the basis of Mother’s affirmative admissions and the allegations deemed to be true by virtue of her rule 34(e) response, the juvenile court later issued a ruling that found a list of facts to be “true by clear and convincing evidence.” We now recount those facts here, with any quotations being drawn directly from the court’s precise verbiage.[3]

The Stipulated Facts

¶6        Since filing for divorce, Mother has sought four protective orders against Father: one in 2016, one in 2020, and two in 2022. Also, Child Protective Services (CPS) has received twelve reports accusing Father of neglect, physical abuse, sexual abuse, domestic violence-related child abuse, and other miscellaneous complaints which were not child welfare related. “All but one of these reports were either unaccepted because they did not meet CPS minimum requirements for investigation or unsupported because there was inadequate evidence to support the allegation after the matter was investigated.” Only two of the twelve reports affirmatively identified Mother as the person who made the report, and though a touch unclear, a third suggested that she was likely the reporter.

¶7        Sometime in 2020, certain pictures were taken of J.S. at Wasatch Pediatrics. These pictures showed “mild inflammation” of J.S.’s “inner labia,” “mild peri-anal erythema,” and a “superficial linear abrasion in the crease of [her] right thigh and perineum.” In August 2020 and again in April 2022, Mother shared medical records with DCFS that included those photographs, and she did so in both instances “as part of an abuse investigation.” In April 2022, Mother “forwarded all communications with DCFS to the Ombudsmen’s office at [its] request,” again including these photographs.

¶8        In June 2022, Mother also “began documenting pictures of [J.S.’s] stool under the medical advice of” a gastroenterology specialist (Specialist) who was treating J.S. “for a chronic gastrointestinal issue.”

¶9        On June 28, 2022, Mother took photographs of “bruises on [J.S.’s] knee, leg, and abdomen.” One of these photographs was “taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia were not visible in the picture,” and the other photographs taken on this occasion “were taken when [J.S.] was clothed.”

¶10      Based on Mother’s concerns about these bruises and about “additional vaginal redness,” Mother took J.S. to the Redstone Clinic on June 30, 2022. A medical professional at the clinic “took pictures of the bruises and vaginal and anal redness” and then instructed Mother to take J.S. to the Emergency Department at Primary Children’s Hospital. In an effort to avoid a further genital exam, a doctor at the hospital accessed and viewed the photographs that had been taken at the Redstone Clinic. While at the hospital, Mother also spoke to the Safe and Healthy Families Clinic over the phone. Mother was advised to call the clinic back during normal clinic hours.

¶11 The next day, a doctor (Doctor) at the Safe and Healthy Families Clinic “indicated that the pattern of bruising [was] unusual and that in the absence of a history of accidental injury, inflicted injury, or physical abuse, the bruises would be a reasonable concern,” but Doctor further opined “that sexual abuse of a child is most often recognized when a child makes a disclosure.” Doctor also said that “constipation . . . is a common manifestation of childhood stress and only rarely associated with sexual abuse.” As to the vaginal redness in question, Doctor said that it was “not an indicator of sexual contact,” “particularly with swimming and warm weather.” Doctor saw “no reason to have specific concern for sexual abuse in this case,” and Doctor did not believe that J.S.’s symptoms met “the threshold for suspected abuse or neglect.” Doctor therefore “did not make a report to either DCFS or law enforcement,” and she saw “no need for follow up in the Safe and Healthy Families Clinic based on” the information that had been provided to her.

¶12 That same day, Mother spoke with an officer from the Summit County Sheriff’s Office, again “reporting the bruises and vaginal and anal redness.” When the officer offered to come to the home and take “pictures of the bruising,” Mother declined. Instead, she sent him the pictures that she had taken of the bruising on J.S.’s knee, leg, and abdomen.

¶13 Sometime later that day, Mother called the Safe and Healthy Families Clinic. A nurse (Nurse) received a page regarding the call. Before calling Mother back, Nurse contacted DCFS and was informed “that there had been several calls over the last few years, but all of them were closed unsupported.” DCFS also informed Nurse that Mother had texted photos to DCFS and a detective. After receiving this information, Nurse called Mother. During that conversation, Mother “requested that Safe and Healthy Families conduct a forensic examination and take photographs of [J.S.’s] genitals due to a request from law enforcement.” The juvenile court’s subsequent finding recounts the following about what happened next:

According to [Nurse], the mother told her that she had taken photographs of [J.S.’s] genitals before and after she went to see her father on the advice of a pelvic floor physical therapist. [Nurse] asked the mother three times for the name of the physician that advised her to take photographs and the mother refused to provide it. [Nurse] states that the mother eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with her father. The mother indicates that she felt pressured and interrogated and was unable to provide the name of [Specialist] to [Nurse]. Mother states that she had trouble communicating with [Nurse] and was unable to explain everything.

The court’s findings also note that “[n]o one has received” the “before and after” photographs described in the conversation Mother had with Nurse.

¶14      Doctor later shared her professional opinion that “she would have substantial concerns about repeated photography” of a child’s genitals. In Doctor’s view, children are “told repeatedly that these are private parts of our body,” but because children would understand that photographs are “usually show[n] to all sorts of people,” repeated photographing of genitals would undermine this messaging. Doctor also expressed her view that subjecting a child to “multiple forensic exams” would improperly “normalize[] certain amounts of touching and manipulation of the genital region.”

¶15 With respect to Mother, “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand.” It is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome) which causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.”[4]

The Neglect Adjudication

¶16      Based on the stipulated facts, the juvenile court found that the Children “are neglected as to [Mother], as it is lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” The juvenile court then ordered that “[c]ustody and guardianship shall continue with the parents with protective supervision services with DCFS,” and Mother was also ordered to “comply with the requirements of the DCFS service plan.” Mother now appeals that ruling.

ISSUES AND STANDARDS OF REVIEW

¶17 The juvenile court ruled that Mother neglected the Children by (i) taking “before and after” photographs of J.S.’s genitals, as well as (ii) “sending other photographs” to various agencies. As explained below, we need consider only the court’s conclusions relating to the “before and after” photographs. With respect to those, Mother raises two challenges: first, Mother challenges the finding that she actually took the photographs; and second, Mother argues that even if she did, this did not constitute neglect. Although Mother’s first challenge is to a factual finding, that finding was based on stipulated facts. When “the facts are stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003 (quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We also review the court’s interpretation of the neglect statute for correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (holding that the determination of “whether the statutory criteria for neglect have been met” is “primarily a law-like endeavor” that is accordingly reviewed for correctness) (quotation simplified).

ANALYSIS

¶18      The juvenile court concluded the Children are neglected as to Mother because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” Because we determine that the “before and after” photographs alone are enough to support the neglect adjudication, we need not consider whether Mother also neglected the Children by sending the photographs to “various agencies.”[5]

¶19      Mother makes two arguments relating to the “before and after” photographs: first, she argues that there was not clear and convincing evidence that she actually took them; and second, she argues that even if she did take the photographs, this did not constitute neglect.

I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.

¶20 Mother first argues that there was not “clear and convincing evidence that Mother took photos of [J.S.’s] genitals before and after visits with Father.” We disagree.[6]

¶21 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement” of a preponderance of the evidence and “something less than proof beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). As noted, because the juvenile court made this finding on the basis of stipulated facts, we afford no deference to its conclusion that DCFS had satisfied the clear and convincing evidence standard. But even so, we conclude that this standard was satisfied.

¶22      The clearest indication that Mother took these photographs is the stipulated finding that Mother told Nurse that she took these photographs. The law has of course long recognized that admissions from a party can carry substantial evidentiary weight. As a result, once Mother told Nurse that she took these photographs, the court had a solid evidentiary basis for concluding that she had indeed taken them.

¶23      In a footnote of her brief, Mother nevertheless argues that the court should not have credited this admission. As an initial matter, Mother points out that “[n]o one has received” these particular photographs. And this seems to be true. But again, Mother told Nurse that she had taken them. From this, even without the actual photographs, the juvenile court could take Mother at her word and find that she had taken them.

¶24 More significantly, Mother suggests that her seeming admission was actually the product of a misunderstanding. As noted, the stipulated facts include that “Mother state[d] that she had trouble communicating with [Nurse] and was unable to explain everything.” They also include that “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand,” and that it is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome),” a condition that “causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.” But even accounting for these facts, the juvenile court could still take Mother’s admissions to Nurse at face value. This is so for several reasons.

¶25      The first is the specificity of Nurse’s account. Nurse didn’t say that Mother had made a passing or unclear comment to this effect. Rather, Nurse recalled Mother telling her that “she had taken photographs of [J.S.’s] genitals before and after she went to see [Father] on the advice of a pelvic floor physical therapist.” On its own, the specificity of Nurse’s account belies the suggestion that Nurse had simply misunderstood Mother.

¶26 Second, Mother seems to have reiterated her initial admission as the conversation with Nurse continued. According to Nurse, after Mother made her initial comment about taking these photographs, Nurse “asked [Mother] three times for the name of the physician” who had recommended taking them, but Mother “refused to provide it.” If Mother had not meant to say that she was taking “before and after” photographs of J.S.’s genitals (or, instead, if she hadn’t said it at all and Nurse had misheard her), Nurse’s repeated questioning about which doctor had asked for the photographs would have given Mother the opportunity to clarify that she had misspoken (or that she had been misunderstood) and that she hadn’t actually taken these photographs. But this wasn’t Mother’s response.

¶27      Instead, Nurse claimed that as the conversation continued, Mother “eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with [Father].” Nurse’s statement that Mother “eventually” told Nurse that she was “documenting” the condition of her daughter’s genitals indicates that Mother reiterated that she had indeed taken them. And the fact that Mother then added the detail that she was “documenting” the “before and after” look of her daughter’s genitals functioned as her explanation for why she thought this was appropriate to do.

¶28      Finally, there’s no place in either the court’s ruling or even in the record as a whole where Mother has ever denied taking these photographs. Even when confronted with a specific allegation from DCFS about an instance in which a witness said that Mother admitted to taking them, Mother chose to respond with a non-admission/non-denial pursuant to rule 34(e).

¶29 Thus, the evidence before the juvenile court was that Mother had told Nurse that she had taken these photographs, that even with the benefits of further conversation and even subsequent litigation, Mother never retracted that admission, and that Mother had instead chosen to justify taking them. In light of all this, we see no basis for overturning the court’s implicit finding that Mother personally took these photographs.

II. The “Before and After” Photographs Were Enough to Establish Neglect.

¶30      “Neglect is statutorily defined,” and it “can be proved in any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court here concluded that Mother’s actions constituted neglect because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” This was an apparent reference to Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent.”

¶31      In her brief, Mother points out that the legislature has not further defined the phrase “lack of proper parental care.” Drawing on various textual, structural, and even constitutional sources, Mother now asks us to take the opportunity to fill in the gap and provide further definition of what this phrase means. While we need not create a definitive one-size-fits all definition, we do agree with Mother on a few broad points that inform our analysis below.

¶32      First, the word “proper” is commonly understood to refer to something that is “marked by suitability, rightness, or appropriateness.”[7] Second and similarly, we think the phrase “proper parental care” would naturally incorporate notions of reasonableness. (After all, conduct that’s appropriate would likely be reasonable, and the converse would also be true.) In this vein, we note that Black’s Law Dictionary links the term “proper care” to notions of “reasonable care” that are commonly used in negligence cases, and Black’s defines “reasonable care” as “the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.” Care, Black’s Law Dictionary (11th ed. 2019). Third, because the statutory phrase at issue turns on notions of “proper parental care,” the relevant inquiry is appropriately focused on what would be proper (with all that the word entails) “under similar circumstances”—meaning, in the particular parenting circumstance at issue. And finally, we agree with Mother that, in light of the fundamental and constitutional rights that are associated with parenting, the neglect standard should not be applied to conduct that falls within an ordinary range of permissible parenting.

¶33      With those principles in mind, we think the contours of this phrase can then capably be fleshed out in the same way that most other phrases from constitutions or statutes are fleshed out— through the ordinary process of common law development. And while there doesn’t appear to be a Utah case that has comprehensively defined this phrase, the parameters of what constitutes neglect have been explored and applied in a number of cases. Among others, we note the following:

·         In In re G.H., we held that the neglect standard was satisfied where the mother “did not attend to the children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick,” where the mother “did not behave in a manner consistent with parenting a child,” and where the mother “would refuse to care for them when asked by the family members with whom she was living.” 2023 UT App 132, ¶¶ 29–31, 540 P.3d 631 (quotation simplified).

·         In In re K.K., we held that the neglect standard was satisfied based on the mother’s “inaction in failing to protect the children from exposure to domestic violence and prioritizing her toxic relationship” with the father. 2023 UT App 14, ¶ 12, 525 P.3d 526 (quotation simplified).

·         In In re K.D.N., we upheld a neglect determination that was based on “the lack of food,” the “profound lack of parenting skills,” and the presence of “violence” and “chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d 768 (quotation simplified).

·         In In re D.T., we held that the neglect standard was satisfied based on the mother’s “admitted relapse” on illegal drugs, “her frequent absences, inconsistent housing, lack of stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309 P.3d 248 (quotation simplified).

·         And in In re N.M., we held that “sufficient evidence support[ed] the juvenile court’s determination that the father “neglected [his child] by engaging in domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.

In these and other cases, we held that the neglect standard was satisfied, not because of a failure of best-practices parenting, but instead because the behavior in question fell outside acceptable norms of proper parenting. To again use the phrase that we recently used in In re G.H., such cases involve a parent who simply “did not behave in a manner consistent with parenting a child.” 2023 UT App 132, ¶ 30.

¶34      So viewed, we agree with the juvenile court’s conclusion here that Mother’s behavior likewise reflected a “lack of proper parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS alleged that Mother had neglected the Children based on a number of things (including her excessive reporting of abuse, as well as her decision to submit the photographs taken by doctors to law enforcement and medical professionals), the conduct at issue in the court’s ruling was Mother taking photographs of a minor’s genitals “before and after parent-time” with Father, as well as Mother’s explanation that she was doing so to “document[] what” J.S.’s “genitals looked like before and after parent-time with” him.

¶35      The juvenile court had before it a statement from Doctor that she had “substantial concerns” about the “repeated photography” of a child’s genitals. Doctor opined that such behavior can be damaging to a child, in part, because it can undermine the messaging that children receive about the privacy relating to their genitals. Doctor’s concerns seem well-founded.

¶36 Moreover, we also note that the photographs in question here were taken by a parent who was in the midst of an “ongoing” and “contentious” custody dispute. By taking photographs of her young child’s genitals “before and after” that child’s visits with her father, Mother wasn’t just potentially desensitizing her daughter to photography of her genitals, but Mother was also communicating to her daughter that she should be concerned that Father was sexually abusing her or at least was likely to do so. This, too, carries obvious potential for harm, both to the child and to her relationship with Father.

¶37      We recognize, of course, that contextual questions such as the ones presented here can and often do turn on even small factual differences. And to be very clear, we don’t mean to suggest that a parent (even one who is involved in a contentious custody dispute) must sit idly by if the parent has a good-faith basis for suspecting that a child is being abused. As illustrated by our survey of the relevant cases above, children should always be protected, and on that front, their parents are indeed the first line of defense.

¶38 If a parent has suspicions that a child is being sexually abused, the parent should of course do something to protect the child, and as indicated, a failure to do anything may well constitute neglect in its own right. Among other things, a parent might respond by reaching out to medical, law enforcement, or other trained professionals, and such professionals may well be involved in documenting any observed abuse. But unlike some of the other photographs at issue in this case, the particular photographs in question here weren’t taken by professionals or in response to their recommendation, nor were they taken by Mother to document visible genital trauma.[8] Rather, according to the explanation that Mother “eventually” gave to Nurse during their conversation, Mother was trying to “document[] what [J.S.’s] genitals looked like before and after parent-time with her father.” It was on this basis that the juvenile court concluded that the neglect standard had been satisfied.

¶39      We have no need to determine whether it would ever be within the bounds of “proper parental care” for a parent to take photographs of a young child’s genitals without first involving trained professionals. And we note here too that, in addition to the suspected abuse scenario, there may be situations where such photography is in response to something more benign (such as diaper rash on an infant), and such contextual differences would likely place such photographs on different analytical footing. For purposes of this appeal, however, we simply conclude that it falls outside the realm of “proper parental care” for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. On this basis, we affirm the juvenile court’s conclusion that Mother neglected the Children.[9]

CONCLUSION

¶40      We agree with the juvenile court’s conclusion that, without something more, it constitutes a “lack of proper parental care,” Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. We affirm the adjudication of the juvenile court on that basis.

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[1] Mother and Father also have another child who was not a minor during the proceedings in question.

[2] For background purposes only, we note that the juvenile court held a “merged pretrial, adjudication, and partial disposition hearing” relating to the one allegation made against Father. At the close of that hearing, the court concluded that the Children were “dependent children . . . in that they were without proper care through no fault of [Father].” Father was ordered to comply with protective supervision services through DCFS as a result. Father has not appealed that ruling.

[3] The parties in this case have all referred to these facts as “stipulated facts.” As indicated, however, Mother affirmatively admitted to certain facts, but for others, she invoked rule 34(e) of the Utah Rules of Juvenile Procedure and neither admitted nor denied them. Under that rule, when a party “declin[es] to admit or deny the allegations,” the “[a]llegations not specifically denied . . . shall be deemed true.” Id. Thus, in a technical sense, the facts the court relied on pursuant to rule 34(e) might not actually be “stipulated” (because Mother didn’t affirmatively agree to all of them), but by force of law, they might as well be. For ease of reference, we’ll follow the lead of the parties and refer to the court’s findings collectively as “stipulated facts.”

[4] Though the findings at issue don’t specifically draw the link, DCFS’s original petition in this case alleged that Mother has a “traumatic brain injury because a car hit her in December 2020,” and the juvenile court also included this finding in an order that it entered with respect to Father elsewhere in this litigation.

[5] The court found that Mother took photographs of J.S.’s genitals, but there’s no finding that she took similar photographs of A.S.’s genitals. Even so, the court found that both the Children are neglected. On appeal, Mother has not argued that this potential distinction provides a basis for reversing the adjudication as to A.S., and we therefore do not consider whether this is so.

[6] The juvenile court did not explicitly find that Mother personally took these photographs. Rather, in this portion of the ruling, the court stated that it is a “lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” “Unstated findings can be implied,” however, “if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). Here, we conclude that the juvenile court did make an unstated finding that Mother took these photographs. As discussed in more detail below, Nurse claimed that Mother admitted to taking them. And of note, no one has claimed that anyone else took these particular photographs. Thus, when the court ruled that Mother had “subject[ed] a child to having her genitals photographed before and after visits with [Father],” the clear (and, indeed, only) implication that can be reasonably drawn from this record and the court’s ruling is that the court implicitly found that Mother took these photographs.

[7] Proper, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/proper [https://perma.cc/YGY2-MJXP].

[8] In contrast, the juvenile court noted that the photographs taken in 2020 showed “inflammation” of the labia and a small “abrasion” near the groin, while the 2022 photographs showed “vaginal and anal redness.”

[9] Mother also makes some allusion to the stipulated facts relating to certain photographs that she was taking on the advice of Specialist. It’s unclear from the briefing whether Mother means to assert this as something of an “advice of doctor” defense to this neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that neglect “does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed”). In any event, those stipulated findings reflect that Specialist worked at a gastroenterology clinic, that Specialist was treating J.S. for “a chronic gastrointestinal issue,” and that Mother had been “documenting pictures of [J.S.’s] stool” in conjunction with that treatment. Mother has not specifically asserted that, in conjunction with this gastroenterology treatment, Specialist also told her to take photographs of her daughter’s genitals, much less that Specialist instructed her to “document[] what [J.S.’s] genitals looked like before and after parent-time with [Father].” We accordingly see no basis from this record to overturn the neglect finding on this potential ground.

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2024 UT App 47 – In re K.J. – removal, shelter hearing

2024 UT App 47 – In re K.J.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.F. AND K.J., Appellants, v. STATE OF UTAH, Appellee.

Opinion Nos. 20230102-CA and 20230103-CA Filed April 4, 2024

First District Juvenile Court, Logan Department The Honorable Bryan P. Galloway No. 1218130

Alexandra Mareschal, Kirstin Norman, and Jason B. Richards, Attorneys for Appellant D.F. Emily Adams, Attorney for Appellant K.J. Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 In separate appeals that we consider together in this opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents) challenge the juvenile court’s orders removing their three children (Children) from their home and, later, adjudicating the Children abused and neglected. Parents’ main challenge concerns the court’s adjudication that they abused and neglected the Children.          Parents also assert that, in one respect, they received ineffective assistance of counsel. For the reasons discussed, we find Parents’    arguments on these two topics unpersuasive.

¶2     But Parents also assert that, during the shelter hearing held at the beginning of the case, the juvenile court did not undertake a proper and complete analysis of the factors the governing statute required the court to consider. In this respect, Parents’ arguments have merit, and we remand the case so that the juvenile court can conduct the proper statutory analysis.

BACKGROUND

¶3 Parents are the legal and biological parents of three “medically complex” children: Kevin, Mia, and Kaleb.[1] The family moved to Utah in 2022, after having lived in Nevada and Arizona; at that time, Kevin was five years old, Mia was four, and Kaleb was not quite two. Parents believed that the Children suffered from a long list of various medical maladies; when the family arrived in Utah, all three Children—despite having largely different medical diagnoses—had surgically placed gastric feeding tubes (G-tubes), were developmentally delayed, and used wheelchairs for mobility.

¶4 In July 2022, Kevin was rushed to a local hospital by ambulance after Mother reported that he had suffered a seizure. Mia was hospitalized at the same time due to concerns about weight and dehydration. Kevin and Mia were transferred to Primary Children’s Medical Center (PCMC) in Salt Lake City; Kevin was treated with IV fluids to address “severe hypernatremia” due to dehydration. Kevin and Mia ended up staying at PCMC for nearly two weeks, and Kevin was even admitted to the pediatric intensive care unit. While Kevin and Mia were at PCMC, medical professionals there became concerned that they were being medically neglected. In particular, hospital personnel observed that Kevin and Mia were “severely underweight,” despite the presence of G-tubes, and “were considered a failure to thrive.”

¶5   After Kevin and Mia were discharged from PCMC, all three Children were referred to a pediatric nurse practitioner (Nurse Practitioner) for follow-up primary care. When the Children arrived at her medical clinic, Nurse Practitioner discovered that the Children—partly due to only recently having arrived in Utah—were not yet set up for medical insurance. But after examining the Children, Nurse Practitioner agreed to treat them anyway, despite their lack of insurance, because in her view “it was medically necessary to see them regardless of the insurance difficulties.” As she saw it, “these kids needed medical care whether [she] got paid” or not, because they were facing “significant medical issues” that she considered potentially “life and death” matters. The Children arrived at her clinic in wheelchairs and were developmentally delayed and nonverbal. None were toilet trained. Over the course of her treatment— which lasted several weeks—Nurse Practitioner also observed that the Children had not been “gaining [weight] as they [had been] in the hospital,” which made her wonder whether the Children might at some point need “to be rehospitalized.”

¶6 A few weeks later, a pediatrician (Pediatrician) was assigned to the Children. When he first saw the Children, he observed that they were all “nonverbal,” and while Kevin had some ability to walk on his own, Mia and Kaleb were “nonambulatory.” During the course of his treatment of the Children, he worked with them to improve their motor skills and their ability to walk, and he monitored their weight, which he indicated was the thing he was “following most closely.” Soon after Pediatrician took over primary care of the Children, Kaleb came in for his “two-year well[ness] visit.” During that visit, Mother indicated that Kaleb had spina bifida, which is “a neural defect at the base of the spine” that can often be fixed with surgery. Mother insisted that Kaleb had already had the surgery to correct the spina bifida, and she even pointed to Kaleb’s back where she indicated there was a scar from the surgery. But Pediatrician saw no scar.

¶7 At some point after Kevin and Mia were released from PCMC, a physician at Nurse Practitioner’s clinic contacted the Utah Division of Child and Family Services (DCFS) to notify them about potential issues with the Children. Thereafter, DCFS assigned caseworkers to investigate the matter, and those caseworkers made some ten visits to Parents’ home, prior to removal, to check on the Children and to assess the situation. These visits occurred at different times of day, yet in every visit except for one, the Children were all confined in “Pack ‘n Play” playpens. Parents stated that the Children needed to be in the playpens so that their G-tubes could function properly, but caseworkers observed that Parents had—but were not using— portable devices that would have maintained a “continuous feed” from the feeding tubes without restricting the Children’s movement. On one visit, one of the caseworkers asked Mother to show her the Children’s medications, and in response Mother brought out a large “two feet by three feet” sized tote bag “full of prescription bottles and different ointments.” During this time, Kevin—who was five years old and eligible to begin kindergarten—was not enrolled in school and therefore was not receiving any of the services a school could potentially provide to a medically complex child.

¶8 In addition to receiving primary care from Nurse Practitioner and Pediatrician , the Children were also referred to and treated by the Pediatric Complex Care Clinic at PCMC. They missed their first scheduled appointment with the clinic, which caused the lead physician there (Physician) a great deal of concern, because she knew that “it was critical that [PCMC] follow up with” the Children. Physician notified DCFS of the missed appointment, which was eventually rescheduled for about three weeks later.

¶9       At that rescheduled visit, Mother reported to Physician that the Children were all suffering from “dysphagia,” which is the “inability to swallow food properly.” Physician observed that Kevin and Mia had “continued to lose weight” since their discharge from the hospital. This was troubling, because the Children all had G-tubes, which exist primarily to make sure the Children are receiving enough nutrition; as one member of the PCMC team testified, “a child with a G-tube whose caregiver is fully responsible for that nutrition intake should not be experiencing failure to thrive in the absence of a disease or pathology that could cause failure to thrive.”

¶10 PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that “none of the [C]hildren [had] a pathology consistent with a disease process that could cause failure to thrive.” Indeed, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite their G-tubes, and that the Children’s “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶11 In addition, after her examination of the Children, Physician was concerned “that the [medical] history being provided by” Parents was “not consistent with what” she was “seeing on physical exam.” Given these concerns, the PCMC team then set out to review the Children’s various medical diagnoses, as reported by Parents, with the goal of verifying or eliminating each of them. As reported by Parents, the Children suffered from the following medical maladies, among others:

·         Kevin had suffered a stroke either in utero or shortly after birth, and had Ehlers-Danlos syndrome, Erb’s palsy, a seizure disorder, hearing loss, premature birth, sleep apnea, and an “allerg[y] to the sun.”

·         Mia had DiGeorge syndrome, blindness, hearing loss, premature birth, cerebral palsy, and prediabetes.

·         Kaleb had spina bifida, gastroparesis, premature birth, clubfoot affecting both feet, urinary retention issues that required catheterization, and hydrocephalus.

In an effort to confirm these diagnoses, the PCMC team requested, obtained, and reviewed over 7,000 pages of medical records regarding the Children, including records from Nevada and Arizona. After completing their review, and after examining the Children both before and after removal, the PCMC team was able to confirm some of the diagnoses. For instance, Kaleb does suffer from clubfoot in both feet, and Mia does have a genetic disorder similar to DiGeorge syndrome. But with regard to most of the diagnoses, the PCMC team concluded that Parents’ assertions were simply unsupported by any medical evidence. In particular, they eventually determined that Kevin does not suffer from Ehlers-Danlos syndrome or any seizure disorder, and that he did not have a stroke either in utero or shortly after birth; that Mia was not legally blind; and that Kaleb did not have spina bifida or hydrocephalus and did not need catheterization.

¶12     Based on these conclusions, and on their examination of the Children, the PCMC team determined that Kevin and Kaleb “had been the victim[s] of” “medical child abuse,”[2] and that the team had “serious concerns” in that regard about Mia. They called for “hospital admission” for the Children to “de-escalate elements of [their] care that are unfounded” and to “restart crucial interventions that have been ignored,” with a focus on “nutrition and aiding age-appropriate development.” And they recommended “development of a long-term plan for trauma- informed counseling and adherence to broad therapies, including speech therapy, occupational therapy, and physical therapy.”

¶13 The PCMC team then met with DCFS caseworkers to explain their findings. Based in part on the information its agents learned at that meeting, the State determined to seek removal of the Children from Parents’ home, and the very next day the State sought and obtained a removal warrant.

¶14 After obtaining the warrant, DCFS caseworkers traveled to Parents’ home to remove the Children. When they arrived, the caseworkers again found the Children in their playpens. Parents were cooperative, however, and Mother changed the Children’s clothes in preparation for the drive to PCMC. One caseworker observed that the Children were “a little stinky” and “had an odor to them like they hadn’t bathed in a few days.” The drive to the hospital was uneventful; Kaleb “babbled . . . baby talk,” while Kevin and Mia were “lethargic” and had a “very flat affect.”

¶15 When the Children arrived at PCMC, hospital staff immediately noticed that the Children exhibited “very poor hygiene” and observed that the Children were each double or triple diapered and that the diapers were “sopping through.” After the wet diapers were removed, hospital staff discovered that the Children had “fairly extensive [skin] breakdown in the diaper area” that was severe enough to require the assistance of the hospital’s “wound clinic.” Hospital staff noted that these sorts of wounds do not occur “overnight” and were the result of “there being wetness on the skin without appropriate response for some period of time.” The Children also had “irritability and breakdown” around their G-tube sites; as with the diaper-area wounds, these wounds also required the assistance of the hospital’s wound clinic.

¶16 Medical personnel also observed that the Children were “malnourished and under expected weight for [their] ages.” Kevin was determined to be “severely malnourished,” while Mia and Kaleb were determined to be “moderately malnourished.” And blood tests on Kaleb “revealed abnormalities very concerning for chronic malnutrition.”

¶17 The doctors considered the Children’s malnutrition to be concerning, and they set about to discover why the Children were unable to regularly eat solid food. All three Children were administered “swallow studies” to determine their “ability to eat and drink by mouth.” Kevin had such a severe “oral aversion to food and drink” that hospital personnel were unable to complete the test, and he was referred to a “speech/language pathologist” to help him overcome the aversion. Mia was “found to have a significant oral aversion to liquids,” and was also referred to a “speech/language pathologist.” Kaleb, on the other hand, was determined to have no oral aversion and was “eager to eat and engaged with all thicknesses of feeds.” Doctors concluded that Kevin and Mia’s oral aversion was “likely the result of not being provided with solid food” at home, and that Kaleb’s test results indicated a “serious concern” that he “did not need a feeding tube” at all.

¶18 Following removal, the Children stayed in the hospital for six days “to medically stabilize them and properly diagnose their conditions” through further examination and testing. During this time, the PCMC team was (as noted above) able to confirm the conclusions it had reached based on the earlier records review.

¶19     Upon discharge from PCMC, the Children were placed into foster care. Kevin and Mia were placed in the same homes, a temporary one at first for a few weeks before being moved to a more permanent placement. Kaleb was placed with a different foster family. Once in foster care, the Children showed rapid and measurable improvement. After having Kevin and Mia for only about a month, their foster mother reported that, while Kevin could only “scootch around the house on his hiney” when he arrived, he eventually learned not only to walk but to run, and he could often be seen doing “laps” around the kitchen island. He also began to allow his teeth to be brushed (something he had refused to allow at first), had become “a lot more personable” and affectionate, and began attending kindergarten and “loves school.” Mia had some ability to walk when she arrived but was “[v]ery unstable”; over time, however, she had learned to “run really fast.” The foster mother obtained glasses for Mia, which helped her navigate the world better. In the beginning, Mia refused to bathe, and would start “screaming and rocking and shaking” when asked to do so, but over time had become accustomed to it and “now she loves bath time.” And Kaleb’s foster mother reported that Kaleb could not crawl, walk, or talk when he arrived, but within a few weeks he learned how to not only crawl but walk with the help of furniture, and he was able to say several words.

¶20 The foster parents also reported that they had enrolled the Children in appropriate schooling. Kevin was enrolled in kindergarten, where he began to receive speech and occupational therapy through the school. Mia was enrolled in preschool, where she was given an individualized education plan that included speech therapy. And Kaleb was enrolled in a state-run program known as “Up to Three,” where he was able to obtain physical and speech therapy.

¶21 With regard to nutrition and weight gain, all three Children demonstrated swift and marked improvement in foster care. It wasn’t long before the Children no longer required 24- hour G-tube feeding; soon, the Children were receiving feedings through the tube only at night and just two or three times during the day. All of them were soon eating solid foods; Kevin’s foster mother reported that he had “tried 20 new foods” and he liked “spaghetti and pasta and yogurt and ice cream.” Following an appointment about a month after foster placement, Physician noted that Kevin “looks to be doing great” and stated that, from “a weight perspective, he is gaining weight appropriately.” And she noted that Mia “looked to be in excellent physical health.”

¶22 Soon after the Children were removed from Parents’ care, Pediatrician set up a meeting to inform Parents of the Children’s condition and accurate diagnoses. Parents refused to accept the PCMC team’s conclusion that many of the previous diagnoses were inaccurate; indeed, Pediatrician described Parents’ reaction as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician later stated that, because of Parents’ “blatant disregard of facts from medical tests and expert opinions from specialists,” he “would be very worried” about the Children if they were to be placed back in Parents’ care.

¶23 In the meantime, legal proceedings began in the juvenile court. One week after removal, the court held a shelter hearing, at which it heard testimony from Mother, Father, and one member of the PCMC medical team. At the conclusion of the hearing, the court stated that it was “convinced by a preponderance [of the evidence] that the [C]hildren were being neglected” by Parents. The court noted that daily oversight of the Children had been Parents’ responsibility, and that this “oversight was done in a way that was neglectful.” It specifically mentioned that, upon arrival at the hospital after removal, the Children all had “soiled” diapers and “open sores” in the diaper area as well as around the G-tube sites. The court noted that the Children “needed a great deal more medical oversight” than they had been getting, and that “at the very least” the case presented “medical neglect” with a “strong indication” that there was also “medical abuse.” The court stated that it had been “up to [Parents] to identify [the issues] and care for these [C]hildren,” who “were not thriving.”

¶24 After making its findings of neglect, the court finished its shelter analysis with the following remarks:

The [c]ourt does find that given the current state of the [C]hildren, exigent circumstances existed with regards to the removal. The removal was proper. At this particular time until there is a plan in place, the continued removal is necessary. Okay? At some point in time if a plan is in place and the parents have shown the ability to take into consideration the current medical condition of the [C]hildren and have shown the ability to work with the professionals that are providing that care for the [C]hildren, I don’t see why it cannot at least be considered that the ongoing continued removal would not be necessary. Okay?

At this point, I just don’t have enough with regards to that. The only thing I have is that there was testimony that if placed back in the care of [Parents], this is going to get worse and worse and worse. I don’t think that has to be the case really.

So I do find removal proper, . . . [a]nd I do find that exigent circumstances, emergency circumstances did exist with relation to the removal at the time the [C]hildren were removed which absolved [DCFS] of the need to provide reasonable efforts to keep the [C]hildren in the home.

¶25 Later, the court issued an order memorializing its oral ruling. It found that “[t]he lack of physical care that the [C]hildren received by [Parents] constitutes neglect,” and that the Children were “clearly not thriving.” The court found that “[r]emoval of the [C]hildren from the home was proper and in [their] best interest,” and that it was “contrary to [their] well-being . . . to remain in the home.” And it found that, “because an emergency situation . . . existed at the time of removal, . . . any lack of pre- placement preventative efforts was appropriate and justified.”

¶26 About six weeks later, the juvenile court held an adjudication trial. Over three trial days, the court heard from thirteen witnesses, including the involved DCFS caseworkers, Nurse Practitioner, Pediatrician, the foster parents, and various members of the PCMC medical team. They all testified about the events described above. At one point during the trial, the Children visited the courtroom, an event the court noted for the record, stating that it “was able to” see the Children and “watch them interact with” Parents. At the conclusion of the trial, the court took the matter under advisement.

¶27 Some ten days later, the court issued a lengthy written ruling in which it summarized the evidence presented at trial and then determined that the Children had been abused and neglected by both Parents. With regard to abuse, the court found that the Children had “suffered or been threatened with nonaccidental harm in that unnecessary medical interventions have been performed that have caused physical harm” to the Children. In support of this finding, the court pointed to six different “unnecessary medical interventions”: (1) a CT scan performed on Kaleb in 2022 that was against medical advice; (2) Mother’s “[i]ntermittent catheterization” of Kaleb; (3) various medical tests performed on Kevin that “expos[ed him] to radiation unnecessarily”; (4) various unnecessary blood draws on Mia;

“bronchoscopies and modified Barium swallow studies” performed on all three Children that “may not have been necessary”; and (6) Parents’ actions in “maintaining the [C]hildren on G-tubes” and “constant[ly] plac[ing]” them in playpens, actions the court found had “harmed the [C]hildren to the point that they became unable to eat food orally or develop the ability to walk.”

¶28     With regard to neglect, the court’s conclusion rested on two separate grounds. First, the court pointed to the Children’s condition upon arriving at the hospital, finding that they were “malnourished” without any “medical reason” and “[d]espite placement of feeding tubes and 24/7 feeding,” and that they were “nonverbal and unable to walk” because of parental neglect and not because of “their medical complexity.” Based on their condition at the time of removal, the court concluded that the Children were neglected because Parents had failed “to provide for their basic physical needs on a day-to-day basis.”

¶29 Second, the court pointed to Parents’ belief that the Children had various medical maladies, many of which did not appear to be borne out by medical evidence, noting by way of example that there is no evidence that Kaleb has spina bifida or hydrocephalus. In that same vein, the court found that the Children “have not received appropriate interventions for their developmental needs,” noting specifically that Mia had not received appropriate medical treatment for certain neurological conditions and that none of the Children had been “enrolled in any physical therapy, occupational therapy, feeding therapy, or speech therapy since the family arrived in Utah.” Accordingly, the court concluded that the Children were neglected because Parents had “failed or refused to provide proper and necessary subsistence [and] medical care when required.”

¶30 After finding both abuse and neglect, the court concluded that “continued removal” was “in the best interest” of the Children, and that DCFS had “made reasonable efforts to prevent the removal,” but that those efforts had been “unsuccessful.” The court ordered that the Children “be placed in [DCFS’s] custody and guardianship for appropriate placement.”

ISSUES AND STANDARDS OF REVIEW

¶31 Parents now appeal, and they raise three issues for our review. First, Parents challenge the juvenile court’s determination, made after the adjudication trial, that they had abused and neglected the Children. In this context, “we apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified). The factual findings underlying an abuse or neglect adjudication are reviewed deferentially and are reversed only if clearly erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But the court’s ultimate determination regarding abuse or neglect is reviewed for correctness, because making that determination, which involves applying a given set of facts to statutory criteria, “is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74, ¶ 23 (quotation simplified).

¶32 Second, Parents assert that, in one respect, their attorneys rendered constitutionally ineffective assistance. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the [party] was deprived of the effective assistance of counsel as a matter of law.” State v. Kitzmiller, 2021 UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified).

¶33 Finally, Parents challenge the juvenile court’s earlier order following the shelter hearing, asserting that the court failed to engage in the proper statutory analysis before issuing its order finding that removal was necessary. In particular, Parents assert that the court did not properly analyze whether DCFS had made reasonable efforts to prevent removal, and that the court did not properly analyze whether there were services available, going forward, that might have prevented removal. At root, Parents’ assertion is that the juvenile court misapplied the shelter statute. “We review [a lower] court’s application of a statute for correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App 227, ¶ 6, 238 P.3d 1089 (quotation simplified).

ANALYSIS

Adjudication Order

¶34 Parents’ main challenge is to the merits of the juvenile court’s adjudication order, in which the court determined that the  Children were abused and neglected as to both Parents. For the reasons discussed, we affirm the juvenile court’s determination that Parents neglected the Children. In light of that ruling, and given the posture of Parents’ arguments on appeal, we need not consider the merits of the court’s abuse adjudication.

Neglect

¶35 We first consider Parents’ challenge to the juvenile court’s neglect adjudication. In this context, “[n]eglect” includes parental “action or inaction causing” any one of six different results. See Utah Code § 80-1-102(58)(a). Yet not all six results are necessary for a neglect determination; when “the juvenile court [finds] neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.

¶36 In this case, the juvenile court determined that Parents had neglected the Children under two of the six statutory subsections. First, based on the condition of the Children at removal, the court determined that Parents’ action or inaction caused a “lack of proper parental care of a child by reason of the fault or habits of the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and alternatively, the court determined, based on the Children’s medical conditions, that Parents had failed or refused “to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” Id.

§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that the juvenile court’s first ground is supported by the evidence in this case, and we therefore need not reach the second.

¶37 In our view, the Children’s condition at removal alone was sufficient for the juvenile court to determine that the Children were neglected. The Children were all malnourished, one of them “severely” so. They were all underweight and failing to thrive. Moreover, they all had mobility problems; none of them could walk in an age-appropriate manner. And none were toilet-trained. In addition, they arrived at PCMC with open sores in their diaper areas and around their G-tube sites that were severe enough to require consultation with the hospital’s wound clinic.

¶38 Even though the Children are medically complex, the juvenile court found that there was no medical reason for their malnourishment, failure to thrive, or open wounds. That finding was not clearly erroneous. It should go without saying that allowing open wounds to develop or remain untreated is not medically necessary; certainly, Parents make no assertion to the contrary. And with regard to malnourishment and failure to thrive, PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that no such medical cause existed here. Absent a medical cause, children with G-tubes should not be malnourished. Following examination and testing, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite G-tubes, and that their “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶39   Parents resist the court’s neglect determination by pointing to the neglect statute’s exception for “reasonable and informed” health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state . . . shows . . . that the health care decision is not reasonable and informed.”). They assert, in essence, that their care of the Children has consisted of a series of health care decisions that the State has not shown to be unreasonable or uninformed. And on that basis they argue that the court’s neglect determination was incomplete and improper.

¶40 Parents’ arguments might have more force if the reason the State was asserting neglect had to do with a specific medical decision Parents made for the Children—say, for instance, their decision to place G-tubes in all three Children. But in this case, the juvenile court’s neglect determination was—at least in relevant part—not based on any specific health care decision but, instead, on the Children’s condition at the time of removal. On that score, Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41– 48, 533 P.3d 859, who asserted that their baby’s low weight was due to their decision to exclusively use breast milk rather than formula—make no effort to defend the Children’s malnutrition and failure to thrive by pointing to any particular health care decision, whether reasonable and informed or not. Indeed, as noted, PCMC doctors concluded, after examination and testing, that there was no medical justification for the Children’s malnutrition and failure to thrive. Under these circumstances, the statutory exception to “neglect” for “reasonable and informed” health care decisions simply has no application.

¶41 We therefore affirm the juvenile court’s determination that, based on the Children’s condition at removal, Parents—through their own “fault or habits”—had failed to provide “proper parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii). Because we affirm under subsection (a)(ii), we need not further discuss the court’s alternative neglect determination, made under subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.

Abuse

¶42 Moreover, because we affirm the juvenile court’s neglect determination, we need not—in this case—consider the merits of the court’s abuse determination. Juvenile court jurisdiction over a child can be based on, among other things, either abuse or neglect. See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination.”). Our decision affirming the juvenile court’s neglect adjudication means that the court has continuing jurisdiction over the Children, regardless of the merits of Parents’ challenge to the court’s abuse adjudication.

¶43 In situations like this one, the propriety of the court’s abuse adjudication ends up being an inconsequential point, unless the affected parent can demonstrate that there will be “collateral consequences associated with an abuse determination that do not follow from a neglect determination.” Id. ¶ 34. In this case, Parents make no effort to articulate any collateral consequences that might follow from an abuse adjudication that are not already present from a neglect adjudication. And when asked during oral argument if we would need to address abuse if we were to affirm on neglect, Parents agreed that, in that situation, we would not need to address abuse. We therefore have no occasion to consider the merits of Parents’ challenge to the court’s abuse adjudication.

Ineffective Assistance of Counsel

¶44 Next, Parents assert that their attorneys provided ineffective assistance during the adjudication proceedings by failing to consult with or call an expert who could have testified about “medical child abuse” and about Parents’ state of mind and intentions regarding their care of the Children. Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel.

¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994). Under that test, Parents “must show that (1) counsel’s performance was deficient and (2) this deficient performance prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified). “To demonstrate deficient performance,” Parents “must persuade this court that, considering the record as a whole, [c]ounsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. And to show prejudice, Parents “must demonstrate a reasonable probability that the outcome of [their] case would have  been different absent counsel’s error.” In re C.M.R., 2020 UT App 114, ¶ 21 (quotation simplified). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Id. (quotation simplified). In this case, Parents cannot meet either element of the Strickland test.

¶46 In support of their ineffective assistance claim, Parents have submitted a declaration from a forensic pathologist (Expert) who indicates that he has experience in cases of medical child abuse. Expert offers his view that, in most cases of medical child abuse, the “responsible parent . . . receives some form of secondary benefit, either financial or psychologic, from the inappropriate and unwanted medical care the child receives.” But he states that, in other cases, the unnecessary medical care is the result of “miscommunication between medical providers and patients” and of “the unsophistication and/or limited cognitive resources” of the parents. Expert states that, in order to offer a useful opinion in this case, he would need to undertake “an adequate psychologic and cognitive assessment” of Parents. He has not yet undertaken any such assessment, although he notes that he has reviewed the reports of another examiner who assessed Parents, and he offers his view that these reports “appear to endorse mental functioning deficits” on Parents’ part “that could lead to inaccurate conceptualizations of [the Children’s] medical conditions and treatment needs,” and that nothing he sees in those reports “implies [that Parents] are putting [the Children] at risk for selfish or self-aggrandizing motives.”

¶47 Under the circumstances presented here, a reasonable attorney could have decided not to consult Expert. The opinions Expert offers speak only to medical child abuse, and not to whether Parents neglected the Children by not feeding them enough and not enabling them to grow and thrive despite their medical maladies. As noted above, we affirm the juvenile court’s neglect determination without reaching the merits of any questions about the propriety of the Children’s various medical diagnoses. Because Expert has nothing useful to say about Parents’ manifest neglect of the Children notwithstanding their diagnoses, a reasonable attorney could have determined that consultation with Expert was not necessary or helpful. Accordingly, we conclude that Parents have not demonstrated that their attorneys performed deficiently.

¶48 For much the same reason, Parents have also not shown prejudice. Even if their attorneys had consulted with and retained Expert, his testimony—given that it goes only to abuse and not to Parents’ neglect of the Children as evidenced by the Children’s condition at removal—would not have made a difference to the outcome of this case.

¶49 Thus, we conclude that Parents have not borne their burden of demonstrating that their attorneys rendered constitutionally ineffective assistance.

The Shelter Order

¶50 Finally, we consider Parents’ challenge to the juvenile court’s earlier shelter order. Before considering the merits of that challenge, we address one preliminary issue: whether Parents have properly appealed the shelter order. After concluding that Parents have properly mounted an appeal from the shelter order, we proceed to address the merits of Parents’ arguments.

Appealability

¶51 We do not see very many appeals from shelter orders. We suspect that this is because shelter hearings occur at the very beginning of any child welfare case, and because orders coming out of those hearings are not considered final orders that are immediately appealable as of right. We therefore take this opportunity to discuss the appealability of shelter orders, and we

conclude that Parents have properly appealed from the shelter order here.

¶52 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation simplified). And, at least conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” Id. ¶ 18 (quotation simplified). “But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context.” Id. ¶ 19. In juvenile court cases, “the determining factor” as to finality “is whether [the order in question] effects a change in the permanent status of the child.” Id. (quotation simplified). Using this “pragmatic analysis of the order itself,” Utah appellate courts have concluded that, in juvenile court cases, “appeals may be heard from more than one final judgment.” Id. (quotation simplified). In particular, adjudication orders and termination orders are considered final orders that are appealable as of right, while “shelter orders” are “not considered final.” Id. ¶ 20; see also In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication order is one such judgment that we have found to be final for purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997) (per curiam) (holding that, because a shelter hearing only creates temporary orders, “a shelter hearing order . . . is not final and appealable as a matter of right”).

¶53 Because shelter orders are not considered to be final orders, they are not immediately appealable as of right.[3] To properly appeal such orders as a matter of right, the party wishing to challenge the shelter order must wait until the court has entered a final appealable order. At that point, the party may take an appeal from the final order, which appeal “may include challenges to interlocutory orders” issued by the court prior to entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1, 304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d 945.

¶54 In this situation, the adjudication order was the first final and appealable order issued by the juvenile court following entry of the shelter order. Thus, Parents’ opportunity to appeal the shelter order as of right presented itself upon entry of the court’s adjudication order. And Parents seized that opportunity by filing their notices of appeal. In each notice, Parents specified that they were appealing from the court’s adjudication order; they did not specify that they also wanted to appeal from the court’s interim shelter order, but parties are not required to include such specification in the notice of appeal. See Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the Utah Rules of Appellate Procedure] does not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review.” (quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019). Parents then indicated in their appellate petition, filed a few months later, that they were challenging not only the adjudication order but also the interlocutory shelter order.

¶55 Thus, Parents took all the right steps to appeal the juvenile court’s shelter order. Such orders are not immediately appealable as of right, but a challenge to such orders may be included in any appeal from the next subsequently entered final order. Parents properly included their challenge to the shelter order in their appeal from the next final order entered by the juvenile court: the adjudication order.

B. Parents’ Challenge to the Shelter Order

¶56 Having concluded that Parents have properly mounted an appeal from the juvenile court’s shelter order, we proceed to consider the merits of Parents’ appellate challenge. In this case, Parents raise a very specific objection to the shelter order. They assert that the court did not properly address two of the required components of the statutorily mandated removal analysis:

“whether reasonable efforts were made to prevent or eliminate the need for removal,” and (2) “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In considering the merits of Parents’ challenge, we first conclude that the juvenile court did indeed err in its application of the shelter statute. In a separate section, we then discuss the appropriate remedy in this situation.

1

¶57 Utah law requires juvenile courts, before removing a child from a parent’s home, to make several specific findings. At issue here are the requirements of subsection 10(a) of the shelter statute. That subsection states, in relevant part, as follows:

(i) The juvenile court shall make a determination on the record as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from the child’s home and whether there are available services that would prevent the need for continued removal.

(ii) If the juvenile court finds that the child can be safely returned to the custody of the child’s parent or guardian through the provision of the services described in Subsection 10(a)(i), the juvenile court shall place the child with the child’s parent or guardian and order that the services be provided by [DCFS].

Id. § 80-3-301(10)(a).

¶58 Thus, this statutory provision requires juvenile courts to make, “on the record,” two separate but related determinations. See id. § 80-3-301(10)(a)(i). The first one is a backward-looking inquiry that asks whether, prior to removal, DCFS has made “reasonable efforts” to “prevent or eliminate the need for removal.” Id. However, if DCFS’s “first contact with the family occurred during an emergency situation in which the child could not safely remain at home,” the juvenile court need not engage in a traditional reasonable-efforts analysis but, instead, “shall make a finding that any lack of preplacement preventive efforts . . . was appropriate.” Id. § 80-3-301(11).

¶59 The second—and related—determination requires analysis of “whether there are available services that would prevent the need for continued removal.” Id. § 80-3-301(10)(a)(i). As we understand it, this inquiry is different from the reasonable-efforts analysis, in that it looks forward rather than backward. As relevant here, the question is not whether reasonable efforts have been made in the past, but whether services are available, going forward, that could “prevent the need for continued removal.” Id.

¶60 With regard to the first part of this inquiry, the court in its oral ruling offered its view that “emergency circumstances did exist” at the time of removal “which absolved [DCFS] of the need to provide reasonable efforts.” And in its later written order, it found that, “because an emergency situation and aggravated circumstances existed at the time of removal, and the [C]hildren could not safely remain in [Parents’] home, any lack of pre- placement preventative efforts was appropriate and justified.”[4]

¶61 Parents assert that this analysis was erroneous because the “emergency” exception that absolves DCFS from making reasonable pre-removal efforts to prevent removal applies only in cases in which DCFS’s “first contact with the family occurred during an emergency situation,” see id. § 80-3-301(11) (emphasis added), a situation not applicable here. The State advances a broader interpretation of this statutory exception, but in our view Parents’ interpretation is the correct one.

¶62 The State agrees with Parents that, in situations in which DCFS’s first contact with the family is in an emergency situation, the statute requires the court to make a finding that any lack of reasonable efforts was appropriate. See id. But it asserts that this provision does not prevent a court from “mak[ing] a finding of exigency in any case where [DCFS] has already been working with the parents,” and it posits that a juvenile court has the authority to dispense with the pre-removal reasonable-efforts inquiry anytime it believes the situation is emergent. We disagree.

¶63 The previous subsection requires that a pre-removal reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i). There are no exceptions built into this subsection. To be sure, there is an exception built into the next statutory subsection, but that provision, on its face, applies only to situations in which DCFS’s first encounter with the family occurred in an emergency situation. We decline the State’s invitation to read a broader emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional limitations into [a rule] that the language cannot bear.”); Greene v. Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not disturb explicit legislative requirements and read into the statute an actual notice exception.”). We conclude that subsections (10) and (11) of the shelter statute, when read together, contemplate an exception to the reasonable-efforts requirement that is applicable only when DCFS’s first encounter with the family occurs during an emergency situation.[5]

¶64   That narrow exception is not applicable here. DCFS was first notified of potential problems with the Children in August 2022, some three months before removal. Between DCFS’s first notification (in August) and removal (in November), DCFS assigned caseworkers to the family, and those caseworkers made at least ten visits to Parents’ home. This is simply not a situation in which DCFS’s “first contact with the family” occurred in an emergency situation, and therefore the “emergency” exception to the reasonable-efforts inquiry does not apply here. The juvenile court therefore erred in applying that exception in this case, and it should have proceeded, at the shelter hearing, to consider whether DCFS had made reasonable pre-removal efforts to avoid taking the Children out of Parents’ home.

¶65   The juvenile court’s error in this regard, however, appears to have been rendered moot by the court’s later finding, made after the adjudication trial, that DCFS had “made reasonable efforts to prevent the removal of the [C]hildren, but those efforts were unsuccessful.” While Parents complain that the court did not undertake this analysis after the shelter hearing, they do not make any effort to challenge the finding that the court eventually made just two months later after the adjudication trial. Under these circumstances, any error the court made by relying on the emergency exception at the shelter hearing, and by failing to make a “reasonable efforts” finding at that time, has been rendered inconsequential by the court’s later unchallenged finding that DCFS had indeed made reasonable efforts to prevent removal.

¶66 We turn now to the second part of the inquiry, the part that requires the court to determine, on a going-forward basis, “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this vein, the court stated, in its written order, as follows:

If, at some point, there is a plan in place and [Parents] have shown the ability to take into consideration the current medical condition of the [C]hildren, and have shown the ability to work with the professionals providing that care for the [C]hildren, the [c]ourt would re-consider whether ongoing and continued removal would be necessary.

This comment indicates that the court was of course aware that services do exist—such as physical, speech, and occupational therapy for the Children and medical education and in-home health care assistance for Parents—that are designed to improve situations like the one presented here. And it indicates that the court was making an effort to apply the second part of the statutory analysis.[6] But the court, in its analysis, did not take the next analytical step and assess whether specific services could be provided to the family, in that moment and going forward, that might obviate the need for removal. See id. Simply stating that, at some point in the future, the court might reconsider its removal order is not sufficient; indeed, in most child welfare cases, the initial permanency goal is reunification, and juvenile courts nearly always stand ready to reconsider removal orders in appropriate cases. The shelter statute requires a more exacting analysis prior to removal, and the court’s failure here to ask and answer the correct statutory question was error.

¶67 And unlike the court’s error regarding the backward- looking reasonable-efforts determination, this error was not later remedied by later findings made after the adjudication trial. The State points to no similar finding made after the trial, and we are aware of none.

¶68 We therefore conclude that the juvenile court made two errors in its attempt to comply with the shelter hearing statute. First, it misapplied the “emergency” exception to its obligation to make a backward-looking reasonable-efforts determination at the shelter hearing. Second, it failed to make a specific forward- looking determination about whether services could be provided to the family that would serve to obviate the need for removal. The first error was rendered inconsequential by later findings. But the second one wasn’t, and we must therefore consider what the proper remedy is, in this situation, to address the court’s error.

¶69 Before doing so, we take the opportunity to emphasize the importance of completing the proper statutory analysis at the shelter hearing. While such hearings take place early in the case and are generally not comprehensive trials, they can assume a position of great importance in the arc of a child welfare case. To be sure, removal orders are temporary nonfinal orders that can be—and in many cases are, see, e.g.In re M.S., 2023 UT App 74,

¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was placed back into the parent’s home at a later hearing, after initial removal)—amended or modified, but removal orders nevertheless memorialize a seminal moment in a child welfare case. Such cases often proceed much differently after the shelter hearing depending on whether the child was (or was not) removed. It is therefore vital that courts undertake the analysis required by the shelter statute, and that, before removal, they engage with both the backward-looking reasonable-efforts analysis as well as the forward-looking services analysis.

¶70 The importance of getting shelter hearings right the first time is highlighted by the difficulty of putting the removal genie back in the proverbial bottle. As this case illustrates, by the time appellate review of a shelter order can take place, the family’s situation will often look much different than it did at the shelter hearing. While post-adjudication events are not part of the record submitted to us on appeal, we are nevertheless aware that, while    this appeal has been pending, significant events have taken place that might affect the way the juvenile court analyzes the question of whether services are available that could obviate the need for continued removal. For instance, we are aware that criminal child abuse charges have been filed against Parents. In addition, we are aware that, since the adjudication hearing, Parents have received certain services, and the court has had the opportunity—at a permanency hearing held in January 2024—to assess the efficacy of those services. And there have doubtless been other developments that have occurred in the previous sixteen months of which we are appropriately unaware.

¶71 In this case, by way of remedy, Parents ask us to vacate the initial removal order and remand the case so that the juvenile court can conduct an entirely new shelter hearing. We do not view this as an unreasonable request; indeed, when an error is made at a hearing, a common remedy is to remand the case for the court to conduct a new hearing. But even though we do not view Parents’ request as unreasonable, in this situation the request is not entirely practical. After all, the situation is much different now from what it was in November 2022, and in cases involving children, our usual remand instructions include an admonition to the court to conduct any new hearing, on remand, in present-tense fashion, as of the date of the renewed hearing, taking into account all that has happened in the child’s situation since. See In re   Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94.

¶72 Under the circumstances, we agree with Parents that the juvenile court’s error cannot go entirely unremedied, and that the case should therefore be remanded so that the juvenile court can complete the analysis required by the shelter statute and, in particular, consider “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). But this inquiry should not be undertaken as of the date of the initial shelter hearing; instead, this inquiry should, on remand, be conducted in present-tense fashion, taking into account all relevant existing developments. See In re Z.C.W., 2021 UT App 98, ¶ 12.[7] Moreover, we offer no specific instruction to the juvenile court as to whether, and to what extent, it must hold an evidentiary hearing on remand; we conclude only that the court must properly complete the required statutory analysis and that it “must—in some manner—consider and appropriately deal with proffered new evidence.” See id. ¶ 15. And we do not, in this opinion, order that the removal order be vacated; the juvenile court may order that relief, if it deems such relief appropriate, only after completing its analysis on remand.

¶73     Finally, we wish to make clear that we harbor no opinion as to how the juvenile court’s renewed analysis should come out; given the realities of chronology, the juvenile court (conducting a present-tense analysis) will have a lot more information than we do now, on this record, about how the Children are doing and how Parents have responded to the situation during the period between the shelter hearing and the permanency hearing. It may well be that the court reaches the same result, after conducting a more complete shelter analysis, that it reached at the permanency hearing in January 2024. On the other hand, it may be that the court, after conducting the proper shelter analysis, finds it appropriate to vacate or amend one or more of its previous orders. But either way, it is important that courts conducting shelter hearings, before they take the rather drastic step of removing children from a parent’s home, follow the requirements of the shelter statute. We remand the matter so that these requirements may be satisfied in this case, albeit belatedly.

CONCLUSION

¶74 We discern no error in the juvenile court’s determination that, based on the condition of the Children upon removal, the Children were neglected by both Parents. And we reject Parents’ assertion that their attorneys rendered ineffective assistance during the adjudication process.

¶75 However, we conclude that the juvenile court did not conduct the proper statutory analysis at the initial shelter hearing. We therefore remand this case to the juvenile court so that it can complete the required analysis and assess, in present-tense fashion, whether there are services available that can prevent the need for continued removal.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] For readability, we use pseudonyms (rather than initials) to      refer to the Children.

[2] In its reports regarding the Children, the PCMC team stated that “medical child abuse” is “a form of child maltreatment characterized by the fabrication or exaggeration of medical history, symptoms, and even exam findings and/or the induction of symptoms by a caregiver.” Medical child abuse “occurs when a child receives unnecessary and harmful or potentially harmful medical care at the instigation of the caregiver,” and it “results in manipulation of the medical system leading to child maltreatment in the form of unnecessary medical examinations, diagnostic [2]testing . . . , imaging, and invasive procedures.” Medical child abuse, in the past, was called “Münchausen syndrome by proxy.”

[3] Parties can, of course, request permission to appeal any interlocutory order (including shelter orders) under rule 5 of the [3]Utah Rules of Appellate Procedure. But parties are not required to seek review under rule 5, and such review is in any event completely discretionary with the appellate court. See Utah R. App. P. 5(a), (g). In this case, Parents did not seek permission to appeal the shelter order under rule 5, but this fact does not affect their ability to later appeal the shelter order following the eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530 (Utah 1993) (stating that “the scope of appellate review from a final judgment” is not “in any way affected or limited by the possibility that any one or more of the trial court’s rulings might have formed the basis of a petition for an interlocutory appeal”); see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that the fact that a parent “could have elected to petition for interlocutory appeal” from an earlier nonfinal order “does not eliminate our authority to review” the earlier order “once the neglect and termination proceedings were completed and an appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012).

[4] There are other statutory provisions that, in specific cases, may operate to excuse or render irrelevant any lack of pre-removal reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that, “in cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect are involved, the state has no duty to make reasonable efforts or to . . . maintain a child in the child’s home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No party asserts that any of these other Utah statutes are applicable here. In a supplemental authority letter submitted to us after oral argument, however, the guardian ad litem (GAL) asserts—for the first time—that the juvenile court’s allusion to “aggravated circumstances” was an implicit effort to resort to a provision of federal law, which provides that “reasonable efforts . . . shall not be required . . . if a court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter, we note that parties may not raise new legal theories in post- argument supplemental authority letters. Cf. State v. Seat, 2022 UT App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not permitted to raise a new question for the first time at oral argument” before this court). But more substantively, the GAL’s argument fails on its face; even if we assume, for purposes of the discussion, that the juvenile court’s comment was actually a reference to a federal statutory exception to the reasonable-efforts requirements, resort to the federal statute is unhelpful here because, at the time of the shelter hearing, no “court of competent [4]jurisdiction” had made any determination that Parents had done anything wrong.

[5] We can certainly envision policy concerns that might support a broader exception to the reasonable-efforts requirement that could apply in any emergency situation, regardless of whether DCFS had already been working with the affected family. We note here, as we sometimes do, that our legislature is free to amend the statute if it believes we have misinterpreted legislative intent.

[6] On this basis, we reject the State’s assertion, also advanced by the GAL, that Parents failed to preserve any objection to the court’s application of the shelter statute. Our supreme court has made clear that there is no preservation problem where the trial court “not only had an opportunity to rule on the issue . . . but in [6]fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (quotation simplified).

[7] In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction that the renewed hearing be conducted, on remand, in present- tense fashion was a function of the applicable statute using a present-tense locution. See id. ¶ 13 (interpreting a statute requiring juvenile courts to assess “whether termination is in the best interest of the child” (quotation simplified)). The statute at issue here also uses a present-tense locution. See Utah Code § 80-3- [7]301(10)(a)(i) (requiring assessment of “whether there are available services that would prevent the need for continued removal” (emphasis added)). We therefore conclude that, in this situation, a present-tense perspective is required on remand.

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2024 UT App 40 – State v. Heward – plea agreement, ineffective assistance

2024 UT App 40 – State v. Heward

THE UTAH COURT OF APPEALS, STATE OF UTAH, Appellee, v. BENJAMIN LEE HEWARD, Appellant.

Opinion No. 20221055-CA Filed March 28, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund No. 201400462

Scott F. Garrett and Jessica Griffin Anderson, Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        Benjamin Lee Heward pled guilty to two charges of aggravated sexual abuse of his two minor daughters. As part of his plea agreement, the State and the victims promised to “affirmatively recommend” a prison sentence of two concurrent terms of six years to life. At sentencing, the prosecutor argued against probation and recommended a sentence of six years to life, but the two victims testified they were having second thoughts about the arguably lenient sentence, a change that the prosecutor attempted to explain. Ultimately, the court followed the recommendation of Adult Probation and Parole (AP&P), sentencing Heward to fifteen years to life on each count, with the sentences to run concurrently. Heward now maintains that the prosecutor breached the plea agreement when he made statements about probation and the feelings of the victims, and he asserts that the district court should have acted sua sponte to remedy the situation. Heward also asserts that his attorney rendered ineffective assistance in failing to object to the prosecutor’s comments. We reject Heward’s claims of error and therefore affirm.

BACKGROUND

¶2          Heward was charged with ten counts of aggravated sexual abuse of a child and one count of rape of a child for the admitted abuse he inflicted on his two minor daughters over a number of years. Heward pled guilty to two of the aggravated sexual abuse charges: (1) rubbing his clothed genitals over the clothed genitals of his older daughter in an act of simulated sexual intercourse and (2) rubbing his younger daughter’s genitals skin to skin with his hand.

¶3          As part of the plea, the State agreed to dismiss the rape charge and the other eight aggravated sexual abuse charges. In addition, the plea agreement indicated that the “State and the victims” would “affirmatively recommend” a prison sentence of six years to life and lifetime sex-offender registration. In contrast, AP&P recommended that Heward be sentenced to fifteen years to life on each count.[1]

¶4          At sentencing, the prosecutor stated, “I know that based on . . . Heward’s statement and the recommendation from his sex offender treatment therapist he’s going to be asking for probation.” The prosecutor acknowledged there was a “very, very narrow exception” to the mandatory imprisonment required for aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) (stating that imprisonment is mandatory). That exception allows a court to “suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if,” along with numerous other conditions, the perpetrator’s offense “did not cause the child victim severe psychological harm.” Id. § 76-5­406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the public and specifically the child victims that the Court should sentence him to probation instead. He can’t show that, Judge. He needs to show that these offenses did not cause the child victim severe psychological harm. He cannot show that, Judge. It’s clear based on the victim impact statements from both [of Heward’s daughters] that they are suffering severe psychological harm, continued psychological harm for what their father did to them.

¶5          The prosecutor then emphasized that Heward’s abuse would make it “extremely difficult” for his victims to have a “sense of peace” and that they were “going to be affected” for “the rest of their lives” because Heward “used them as sexual objects.” The prosecutor also pointed out that certain sex offenses involving children in Heward’s juvenile record indicated that he represented a danger to the community. The prosecutor concluded by saying, “He’s going to tell the Court right now that he should be granted probation because he’s not a threat to the community. The Court should disregard that.”

¶6          The prosecutor then gave Heward’s victims time to speak. The older daughter stated that Heward’s abuse had a “devastating impact” on her life, that she was “still suffering from his actions,” and that she was “always having to look over [her] shoulder making sure he’s not around” her. This daughter, after recounting the “painful memories” and her continuing trauma, stated that Heward was “being shown undue mercy . . . with a plea agreement.” She also noted that Heward had violated protective orders “[a]gain and again” and even at the sentencing hearing, he had “force[d]” and “manipulated” her and her sister “into an embrace with him.”

¶7          The younger daughter also spoke. She said that as a result of the abuse, she struggled with depression and anxiety. She shared that she continued to “feel uncomfortable leaving [her] room” because she was afraid that she would “get raped and sexually assaulted again.” She further revealed that whenever someone touches her “unexpectedly,” she is “startled” and “can physically feel it all happening again.”

¶8          After Heward’s victims finished speaking, the prosecutor expressed that he wanted “to talk about what the State’s recommendation [was] going to be.” He explained that “[i]n speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender” registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, if they still feel the same way, understanding that I’m bound to the recommendation of 6 to life, that I thought it was important for the Court to know where the victims stand today. I asked them how they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

Prosecutor: Yes, sir, that is the State’s recommendation.

Court: Okay, . . . you need to be very careful you don’t say anything now that could be you trying to argue against that deal. So be circumspect in your comments.

Prosecutor: Judge, I’m not arguing that it should be anything else. I think the Court should be fully informed about where the victims are. The victims aren’t party to this agreement, but victims do have a right to be heard, and that can be through their own statements or through that of the prosecutor. They felt like they were manipulated by the defendant to feel sorry for him, and the Court did hear those statements today. They felt manipulated, and that’s why they wanted 6 to life. That’s the reason for the plea offer that was given, Judge. The State is still bound and still recommending 6 to life.

¶9          Heward’s attorney (Counsel) then spoke about mitigating factors that the court should consider in sentencing. Counsel agreed with the State that Heward “probably [was] not qualified” for the “statutory exception that allows for probation.” Counsel then concluded, “We would concur with the recommendation of the two concurrent 6 years. That’s what we’ve all agreed to, and that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his therapist, spoke about various mitigating factors. And Heward himself spoke, stating that he was “not asking for probation.”

¶11        The court was not persuaded by the recitation of mitigating factors:

[I]t evidences a higher level of depravity when the victims are your biological children, and this conduct went on for years. . . . [T]hat’s also an aggravating circumstance. It’s an aggravating circumstance that you violated the protective order.

Frankly, based on the information that’s before me, it seems to me that you’ve minimized the conduct that you’ve been involved in. I’d be more inclined to accept the versions that [your daughters] provide in terms of what happened.

Based on all of that, I’m going to follow the AP&P recommendation. I don’t think that I have the discretion to sentence you to less than 15 years in prison. That’s the sentence of the Court. You’ll be sentenced to [two concurrent terms] of 15 years to life in the Utah State Prison.

¶12        Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13        Heward first argues that the “prosecutor breached the plea agreement by failing to affirmatively recommend a prison sentence of six years to life and by implying the State regretted entering into the plea agreement.” Heward acknowledges that this claim was not preserved and asks that it be reviewed under both plain error and ineffective assistance of counsel. See State v. Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an unpreserved alleged breach may be reviewed for plain error and ineffective assistance of counsel). To demonstrate plain error, Heward “must show that: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

ANALYSIS
I. Plain Error

¶14 Heward complains that the prosecutor breached the plea agreement in two separate but related ways. First, Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life as indicated in the plea agreement. Second, Heward argues that the prosecutor then “compounded” the breach by bringing up the victims’ apparent change of heart about the plea agreement, implying that the State regretted entering the plea agreement. And Heward asserts that the district court “should have been aware of the errors the prosecutor made.” In such cases, our court has focused on whether a prosecutor’s statements were egregious enough to require a district court to act sua sponte to remedy the situation. See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of [the prosecutor’s] statements was so egregiously false or misleading that the judge had an obligation to intervene by raising an objection sua sponte.”); State v. Hosman, 2021 UT App 103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s statements were so egregious that it constituted plain error for the court to fail to intervene sua sponte to remedy the harm), cert. denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the State actually breached the plea agreement, that the breach should have been obvious to the district court, and that had the district court recognized and remedied the breach, there is a reasonable likelihood that [his] sentence would have been more favorable.” State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 P.3d 1185 (Utah 2016). And “if any one of these requirements is not met, plain error is not established.” Id. (cleaned up).

¶16        “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea agreement is breached when the State fails to act in accord with its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a defendant alleges that the State violated a plea agreement by making inappropriate statements at sentencing, as [Heward] does here, we consider the prosecutor’s statements in the context of the entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

  1. Affirmative Recommendation

¶17        Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life agreed to in the plea. The gist of Heward’s argument is that “[i]n order to affirmatively recommend a sentence of six years to life, the prosecutor was required to make an effort to position the recommendation as one that is ‘in the interests of justice.’” (Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, instead, the prosecutor “utterly failed to make an argument or present the judge with any information that a sentence of six years to life was in the interests of justice.” Heward complains that the prosecutor “focused solely” on the limited discretion of the judge, certain aggravating factors (namely, the psychological harm suffered by the victims, Heward’s juvenile record, and Heward’s alleged violation of a protective order), and the victims’ alleged withdrawal of support for the plea agreement. “By emphasizing only aggravating factors in his argument,” Heward asserts, “the prosecutor failed to affirmatively recommend a sentence of six years to life,” resulting in “a clear breach.” We are not persuaded that any breach, let alone a clear one, occurred when the prosecutor highlighted these factors.

¶18        First, the prosecutor’s statements about aggravating factors were made not in reference to the plea agreement but in the context of arguing that Heward should not be offered probation under the limited statutory exception to mandatory imprisonment. By pointing to the severe psychological harm inflicted on the victims and Heward’s juvenile record, the prosecutor was explicitly arguing that Heward was not eligible for probation under the statute. And Heward’s violation of the protective order was also mentioned in the context of denying probation—specifically that Heward should start serving his sentence immediately. As the State points out, the prosecutor’s remarks about the protective order violations “weren’t about what Heward’s sentence should be, but when he should begin to serve it.” Arguing against probation and for immediate incarceration— even if it necessarily required the prosecutor to reference some aggravating factors relevant to other aspects of Heward’s sentencing—was consistent with the State’s recommendation of six years to life. After all, the plea agreement made it perfectly clear that the State would “affirmatively recommend” a prison term, a recommendation that obviously entitled the prosecutor to argue—even forcefully—against probation by highlighting specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative recommendation” does not require any particular measure of enthusiasm for an agreed-upon sentencing recommendation. While a prosecutor may not “undermine” a promised sentencing recommendation by expressing “personal reservations at the sentencing hearing,” the “prosecutor has no responsibility to make such recommendations enthusiastically.” State v. Shaffer, 2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 2016 UT App 87, ¶ 18 (“[The prosecutor] described the circumstances of the crimes to underscore [the absence of mitigating factors], and at the conclusion of this discussion, he accurately, if not enthusiastically, described the recommendation the State had agreed to make for concurrent sentences . . . . [This] context supported a reasonable interpretation that comported with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any provisions regarding how the State was to fulfill its promise to “affirmatively recommend” the six-years-to-life sentence. It offers no guidance on how enthusiastically or forcefully the prosecutor had to argue in favor of the agreement. Nor does it indicate, as Heward argues on appeal that it should, any kind of obligation on the part of the prosecutor to highlight mitigating factors. And while it is true that the prosecutor did not approach the recommendation with gusto, it is even more clear that the prosecutor did affirmatively recommend the agreed-upon sentence two distinct times. The prosecutor explicitly declared that six years to life “is the State’s recommendation.” (Emphasis added.) And when cautioned by the court to “be circumspect” in his comments to avoid saying “anything” that “could be . . . trying to argue against that deal,” the prosecutor clarified that he was “not arguing that it should be anything else” and that the “State is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in that the prosecutor did more than merely submit the matter without any argument against the defense’s recommendation; to the contrary, the State expressed its affirmative assent to the prison term agreed upon in the plea agreement. See State v. Samul, 2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between situations in which a plea agreement merely “secured the State’s promise not to oppose” the defense’s recommendation and situations in which a plea agreement requires the State to “affirmatively argue for” a particular sentence), cert. denied, 432 P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort to positively express the State’s assent to the term of six years to life by declaring that the term “is the State’s recommendation.” (Emphasis added.) That the assent was expressed without great enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken as a whole, represent a consistently unambiguous affirmation at sentencing that the State stood behind its recommendation of six years to life. We perceive no breach of the plea agreement in the manner in which the prosecutor recommended a six-years-to-life prison sentence.

  1. Implication of Regret

¶23 Heward next argues that in informing the court that the two victims apparently no longer supported the sentence of six years to life, the State breached the plea agreement by implying that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain sentence and does so” does not breach the bargain “by also bringing all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” Shaffer, 2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not inherently reflect the position of the State, and victims are not authorized to communicate the State’s recommendations. Therefore, by sharing the victims’ feelings, the prosecutor was making a neutral statement, one that did not reflect the State’s position or recommendation. See id. ¶ 32 (“By repeating the victim’s statement, the prosecutor did not undermine the State’s recommendation or imply that the State regretted that recommendation.”). Thus, bringing to the court’s attention that the support of Heward’s victims for the plea agreement had perhaps waned does not imply that the State regretted entering the plea.

¶25        It is also important to note that the prosecutor made these comments immediately after Heward’s victims made statements that could admittedly cut against the sentence of six years to life. The older daughter seemed to explicitly oppose the plea agreement, saying that Heward was “being shown undue mercy . . . with a plea agreement.” And the younger daughter, while not overtly criticizing the plea agreement, described in detail how Heward’s abuse caused her to feel “numb,” depressed, anxious, “suicidal,” “unclean and dirty,” and untrusting. She further stated that she continued to have “very vivid nightmares and flashbacks” in which she could “physically feel his hands” on her. She also said, “I will never be able to forget how it felt when . . . Heward did the things he did to me. I’m afraid that wherever I go I will see him and he will hurt me in some type of way.” And she concluded by saying, “I want . . . Heward to learn from his actions, and I want him to know how badly he affected me . . . .” Given the graphic descriptions both victims provided of the ongoing harm they suffered, it certainly would not be a stretch to conclude that the victims thought Heward was being treated too leniently by the terms of the plea agreement.[2]

¶26 It was against this backdrop that the prosecutor spoke. As the State points out, the victims’ apparent “about-face on the plea agreement demanded an explanation” because the “court may have been confused by the disparity between the victims’ statements at sentencing and the plea agreement.” After all, the plea agreement stated that the “State and victims will affirmatively recommend” a sentence of six years to life. But after the victims spoke, the court could have easily concluded that the victims were no longer on board. It is in this milieu that the prosecutor assured the court that in “speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender registry” and that was the offer the State gave Heward. Then the prosecutor explained that the victims had “wanted 6 to life” because “they felt manipulated” by Heward. We have made clear that a prosecutor conveying the views of the victim does not “undermine” or breach a plea agreement. Here, if anything, the prosecutor’s statements about how the victims felt represented an attempt to salvage the plea agreement after the victims’ statements could be taken as militating against it. And it was well within the prosecutor’s duty to assist the victims in making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 P.3d 756 (“Prosecutors must assist victims in exercising their right to be heard at plea hearings and provide them with clear explanations regarding such proceedings.” (cleaned up)). The prosecutor appeared to be making the best of a delicate situation by juggling the interests of the various parties involved while trying to also honor the promises made in the plea agreement.

¶27        In sum, Heward’s complaint of plain error fails because the prosecutor did not breach the plea agreement at all, let alone commit a breach so obvious as to require the district court to intervene without an objection.

  1. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must prove that Counsel performed deficiently and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that Counsel did not perform deficiently, we limit our analysis to the deficiency prong. We give “trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Heyen, 2020 UT App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). So, to prevail on Strickland’s first prong, Heward “must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Samul, 2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed because, as we have explained above, it was far from clear that the prosecutor breached the plea agreement. See State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.” (cleaned up)), cert. denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a reasonable attorney could have concluded that the prosecutor had made the required “affirmative recommendation” and had therefore not breached the plea agreement at all. See Samul, 2018 UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned basis for counsel’s decision not to object to the State’s remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement.”).

¶31        Second, even if we assume, for purposes of the discussion, that Counsel actually believed, in the moment, that the prosecutor’s sentencing remarks constituted a breach of the plea agreement, Counsel nevertheless had a solid strategic reason not to object to the prosecutor’s statements, namely, an objection could jeopardize the plea agreement and he very much wanted it to remain on the table owing to the favorable terms it offered Heward. Through the plea agreement, Heward would serve time for only two of his eleven charges—ten counts of aggravated sexual abuse of a child and one count of rape of a child. If Counsel had been successful in objecting that the prosecutor breached the plea agreement, one of two results would have likely happened. At its discretion, the district court could have ordered “either specific performance of the plea agreement or withdrawal of the guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If the court had ordered specific performance, the State would then have to reiterate that it was honoring the promises made in the plea agreement. But it would have been more likely (had a breach occurred) that the court would have allowed Heward to withdraw his plea—something he would be reluctant to do since the probability of getting an equally favorable offer later would be slim in light of the victims’ apparent reservations about the existing plea agreement. Competent counsel could easily conclude that the risk of objecting was simply too great considering the minimal benefit and likely downside. At the very least, competent counsel could have reasoned that there was no benefit in objecting because the existing agreement was the best Heward was going to receive. So, Counsel’s best course of action was to express Heward’s concurrence with the six-years-to-life sentence and hope that the court would agree.

¶32        Accordingly, Heward’s ineffective assistance claim fails because Counsel had sound strategic reasons for not lodging an objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33        Heward fails to establish that the district court plainly erred where he has not shown that the plea agreement was breached, much less obviously so. He has also failed to show that Counsel provided ineffective assistance in not objecting to the prosecutor’s statements.

¶34 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] For context, a court imposing a sentence for aggravated sexual abuse of a child may deviate downward from the presumptive upper range of fifteen years to life if the “court finds that a lesser term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). The available lesser terms are ten years to life and six years to life. See id.

[2] In his reply brief, Heward explicitly states that he “does not object to the prosecutor facilitating the victims’ statements to the trial court.” Moreover, Heward does not claim in any way that the victims speaking up against the low-range sentence was a breach of the plea agreement, even where the plea agreement stated the victims would “affirmatively recommend” a sentence of six years to life along with the State.

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Do Many Women Lie About DV in Divorce and Child Custody Court Cases?

Yes. Many women (not all, but many more than we’d like to believe unquestionably lie and make outright false or grossly exaggerated domestic violence claims. The temptation to tell such lies is just too great for many women when they see the leverage and advantage it gives them in divorce and child custody cases, the immediate “temporary” custody of the children and associated child and spousal support and possession of the marital home, and the money to be had by being awarded sole or primary child custody and/or alimony in part due to making claims that the husband/father is a spouse and/or child abuser.

Do men do the same? Of course some men do. But rarely are they believed. So, that keeps the liars in check to some extent, at the expense of actual male domestic violence victims.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”

*****

It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).

*****

• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.

*****

As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)

*****

“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA

 

Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

   
DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)

—————————–

The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In re H.H. – 2024 UT App 25 – termination of parental rights

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.H. AND N.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.H. AND D.H., Appellants, v.  STATE OF UTAH,  Appellee.

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

Scott L. Wiggins, Attorney for Appellant T.H.

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After a lengthy bench trial, the juvenile court found grounds to terminate the parental rights of D.H. (Father) and T.H. (Mother) (collectively, Parents) regarding their two youngest children, H.H. (Hannah) and N.H. (Noah).[1] The court found that Father was an unfit parent because he had subjected four of his children, including Hannah and Noah, to “serious emotional abuse,” inflicted through a strict and intimidating parenting style, that “resulted in two of the children considering suicide as an option to end the maltreatment.” As to Mother, the court found that her continued support of Father rendered her incapable of “exercising proper parental care.”

¶2        In its initial post-trial ruling, the court determined that it was in Hannah’s and Noah’s best interest for Father’s parental rights to be terminated, but that it was not in their best interest for Mother’s rights to be terminated. Instead, the court imposed a permanent guardianship arrangement in favor of an adult sibling (Oldest Sister). Later, however, after the guardian ad litem (the GAL) filed a motion for reconsideration, the court amended its initial ruling and ordered Mother’s rights terminated as well.

¶3        In separate appeals that we consider together in this opinion, Parents challenge the termination of their parental rights on several grounds, asserting chiefly that the “juvenile court process” that led to termination violated their constitutional rights and that the court erred in concluding that termination of their parental rights was strictly necessary. For the reasons that follow, we reject all of Parents’ arguments and affirm the court’s termination order.

BACKGROUND[2]

The Family Situation and the Initial Removal

¶4        Parents are the natural parents of six children: four daughters and two sons. By the time this case was initiated in 2018, the two oldest children (Oldest Sister and Older Brother) had reached adulthood and were living on their own. Some years earlier, when she turned eighteen but while she was still in high school, Oldest Sister moved out of Parents’ home because, in her view, Parents had created “a very horrible living situation” that left her “scared to go home.” In 2013, when Older Brother was seventeen and a junior in high school, he also elected, for apparently similar reasons, to move out of the family home; at that point, he moved in with Oldest Sister—who is some nine years older than Older Brother—and her husband (Brother-in-Law). The four younger children—Chloe, Felicity,[3] Hannah, and Noah—all still lived with Parents.

¶5        In May 2018, Utah’s Division of Child and Family Services (DCFS) received a report that Chloe—who was fifteen at the time—had confided to a teacher that her home life was so unbearable that she was considering suicide, on a “constant basis,” as a means of escape. As Chloe described it, Parents were constantly screaming and fighting and taking their anger out on the children. Physical violence, both real and threatened, and verbal abuse were tools that Parents—especially Father— frequently used against the children. Father also forced the children to do seemingly endless chores, and he required them to pay him for basic amenities like fresh food (as opposed to “expired” food storage), computer usage, and rides to school. Chloe told a DCFS caseworker that she was suicidal because “she couldn’t handle being home alone with [Father] all summer.”

¶6        Spurred by the report it received about Chloe’s suicidal ideations, DCFS conducted an investigation during the summer of 2018. Among other things, it administered a “suicide severity” test to Chloe and concluded that Chloe scored “very high.” When DCFS reported this score to Parents, they “both scoffed” and responded that Chloe was a “drama queen” who was “just trying to get attention.” At the end of the investigation, DCFS made a supported finding of “emotional maltreatment” against Parents and offered them “voluntary services” to assist them in improving the situation. DCFS also spoke with Oldest Sister, who was familiar with the family dynamics and the living situation at Parents’ home. Oldest Sister committed to keeping an eye on her siblings and promised to notify DCFS “if the situation escalated.”

¶7        DCFS then notified Parents, by letter, of its “emotional maltreatment” finding. When Parents received this letter, they became “enraged” and responded by “blam[ing] the children” and acting “very vindictive” toward them. In particular, Parents warned the children that, “if they were to speak with authority figures,” including “church leaders” or anyone at DCFS, about events occurring in the home, they would be “severely punished.”

¶8        Notwithstanding this warning, in August 2018 the three younger daughters—Chloe, Felicity (then fourteen), and Hannah (then twelve)—sought guidance from one of their church “young women” leaders (YW Leader). The family—including Parents as well as all six of their children—are practicing members of The Church of Jesus Christ of Latter-day Saints, a church that has relatively structured youth programs with local lay leaders

assigned to provide supervision and guidance. Both YW Leader and the president of the family’s local church unit (Branch President) had counseled the girls—without Parents’ knowledge—to “contact one of [them] if things got too bad at home and they needed an escape or someone to talk to.” When the girls sought YW Leader’s advice, she brought them in to meet with Branch President in his office at the local church.

¶9        As the meeting between the girls and Branch President was nearing its end, Father—having gotten wind of the meeting— appeared at the church; Branch President observed that Father was very upset and “quite agitated,” and Father demanded “to know what [the girls] were doing at the church.” Father “backed [the] girls into a corner” of Branch President’s office and “started angrily interrogating them” and “berating them in a loud, almost yelling tone” before then “turn[ing] on” YW Leader when she tried to intervene. The girls began “sobbing and begging him to stop.” Branch President, perceiving that the girls “were terrified,” also asked Father to stop, telling him that his behavior was “inappropriate.” Father then “angrily” “turned on” Branch President, put a “finger in [his] face,” and accused Branch President of “trying to divide his family.” He also “unloaded on” Chloe, “telling her that she was nothing but a drama queen and that if she hadn’t been threatening suicide just to get attention” the family “wouldn’t be in this mess.” His verbal assault was so fierce that Chloe “threw up her arms in front of her face” in an effort to protect herself. YW Leader was “shocked and quite upset” and “couldn’t believe what she was seeing.” Eventually, Father left the building, and after the incident, Branch President decided to take a step he’d never before taken in his years as a religious leader: he wrote a four-page single-spaced letter to DCFS describing the situation generally, and the incident at the church specifically, offering his view that the “terror and anguish the girls are experiencing” are “real” and that the situation requires attention. He requested that DCFS reopen the family’s case and that, “at a minimum,” the girls “be given a chance to be evaluated by professional counselors.”

¶10      Over the next few days, the situation in the family home continued to deteriorate. During this time, Chloe continued to talk about suicide, and she did so even more seriously; Brother-in-Law reported that Chloe was now saying that she had “a plan” for committing suicide. And Brother-in-Law reported that Felicity, for the first time, was also talking about suicide, even going so far as saying “it was the only way to escape this life as she could no longer deal with it.” On at least one occasion during this time frame, Felicity contacted DCFS to provide additional information.

¶11      Also during this time period, Parents often “cornered” the girls at home, separated them into “different rooms,” and “interrogat[ed]” them for “several hours” about whether they were “sharing information with” DCFS and, if so, what they had shared. During these interrogations, Parents would scream and yell, would threaten to send the children “to juvey,” and would tell them that they would be responsible if the “family was destroyed” and that, in that event, the children would end up in “foster care” where they would likely “be beat[en] and raped.”

¶12 On August 29, 2018, the day after an especially long evening interrogation, Felicity and Hannah went to school— which had just begun for the year—but were so distraught when classes ended that they were afraid to return home, so they contacted Brother-in-Law and asked him to pick them up. When Brother-in-Law arrived at the school, he found the girls “cowering” in the front office and “shaking uncontrollably,” behavior Brother-in-Law considered uncharacteristic; they also would not “let go of each other’s hands.” Brother-in-Law later reported that Felicity was “panicked out of her mind to have to return home to the situation” there. Brother-in-Law took the girls to his house, and he contacted DCFS; he told the caseworker that he “didn’t feel comfortable letting them go home because” he was concerned they might “hurt themselves.”

¶13 The DCFS caseworker assigned to the case traveled to Oldest Sister’s house and spoke with the girls, and she determined that “the family situation had risen to a dangerous level.” At that point, DCFS “sought and received a warrant for the removal” of all four minor children “from the custody and guardianship” of Parents. Later that evening, Parents arrived at Oldest Sister’s house and were served with the removal warrant. DCFS officials, accompanied by law enforcement, informed Parents that the children had been removed from their home. The children were eventually officially placed with Oldest Sister and Brother-in-Law; Hannah and Noah have remained in that placement ever since, and Chloe and Felicity remained in that placement until they reached adulthood.

The State’s Petition and the Shelter Hearing

¶14      The next day, the State filed a petition asking the court to award custody and guardianship of the children to DCFS. In its petition, the State discussed the situation in the home and asserted that both Chloe and Felicity had been having “suicidal thoughts and ideations” as a result. The petition included allegations of the constant chores Father required the children to perform, as well as Father’s requirement that the children pay him for basic necessities. It also included detailed allegations of verbal abuse by Parents, asserting that they were “swearing and spitting” in the children’s faces, calling them “little shits” and “worthless,” and telling the girls in particular that they were “ugly” and that Parents “wishe[d]” they hadn’t been born. The State alleged that Father used physical force as part of his dominion over the children, often “push[ing]” them and “pull[ing] the back of their hair.” Mother would sometimes “threaten[] to kill herself” and then disappear, causing the children distress and creating “panic”as they wondered whether Mother might have followed through with her threats. The State requested that the children be placed “in the custody and guardianship” of DCFS and that any visitation between Parents and the children be at the direction of DCFS and in consultation with a guardian ad litem.

¶15 At a shelter hearing held a few days later, the court considered evidence by proffer from several witnesses, including Parents, the four minor children, Oldest Sister, Brother-in-Law, the DCFS caseworkers, and Branch President.[4] At the conclusion of the hearing, the court found that the children were “suffering emotional harm” and there was “nothing and no services” that could be “placed into the home to ameliorate the harm.” Accordingly, the court concluded that the children could “not be safely returned” to Parents and awarded temporary custody of the children to DCFS, with Parents to have supervised visitation. The court also appointed the GAL to represent the interests of the children, and it later appointed attorneys to represent Mother and Father, separately.

The Failure of Group Therapy

¶16 During the fall of 2018, the court held hearings in the case on nearly a weekly basis, as disputes arose over even rather basic things. For instance, the State wanted all four children to have a mental health assessment, but Parents objected; the court held a hearing and ordered that the evaluations take place and that Parents were not allowed to attend them. The evaluations eventually occurred, and the children began therapy—both individual and group therapy—with a counselor in October 2018. Some of the group therapy was designed to include Parents; indeed, the court ordered that, for Chloe and Felicity, all visitation “shall be therapeutic until further order of the court.”

¶17 At first, the children were reticent to even see Parents, much less participate in group therapy with them. The therapist facilitating the group therapy (Therapist) asked the children— prior to the appointments with Parents—if there were “things that [Therapist] could put into place” that would help them “feel comfortable” with the arrangement, and the children—“together as a collaborative process”—came up with a set of guidelines they thought would help. Among other things, the children asked that there be “no hugs” between them and Parents, “no talking about money,” and “no talking about religion” or “church stuff.” Therapist communicated these child-created guidelines to Parents on October 24, 2018, just prior to the first group therapy session.

¶18      Parents objected to these guidelines, especially the “no talking about religion” rule, and at a hearing held just over a month later, the court removed the “no talking about religion” rule but overruled Parents’ objections to the other rules. During the short time the “no talking about religion” rule was in place, however, Parents—and Father in particular—pointedly refused to abide by it; indeed, Therapist later testified that Father brought up religion in “nearly every visit.”

¶19 For instance, during one session between Father, Felicity, and Chloe, Therapist had to ask Father “seven times” to stop talking about religion. In previous sessions, Therapist had asked Father to focus on “listening” to the girls, because he “spoke so much” during the sessions that the girls typically did not “have the opportunity to share” their feelings. But in this session, and despite Therapist’s attempts to intervene, Father continued his behavior of dominating the discussion and refusing to listen to the girls’ concerns, explaining that “he had the power from God, that he had the power of the priesthood” and they did not, which gave him the right to direct all decisions for the family generally and for the girls specifically. At times physically standing up and towering over the girls, he told them that Brother-in-Law had no right to take decision-making power away from Father and that “God gave [Father] the right” to make decisions for the children as he saw fit. The girls reacted by “hiding” and “cover[ing]” themselves with pillows, and “scoot[ing] closer together” in solidarity. They appeared “very defeated” and “stopped talking”; Therapist observed that they “completely withdrew and shut down and were done having any interaction at that point.”

¶20      As time went on, and recognizing that no progress could be made as long as Father dominated the discussion during therapy, Therapist attempted to make future sessions more “child-focused.” During one session, Chloe and Felicity “started to express” how they often felt bullied by Father, and he responded by stating “that people who get bullied . . . are victims because they allow themselves to be.” He told the girls that it was “their fault” that they were being bullied and that he had done “nothing” wrong. In an effort to get through to Father, Therapist then attempted a “role reversal” technique whereby Felicity would portray Father and Father would portray Felicity; the purpose of this exercise was to give Father an “understanding of how his children felt when he lectured them.” Once Felicity (pretending to be Father) began her lecture, Father “started fighting back instantly.” Therapist informed Father that he was not “doing the role reversal the right way” because, as Father had already explained, “he expects complete compliance” from the children when he lectures. To fully engage with the role-reversal exercise, Therapist instructed Father “to sit there” and “listen” just as he expected his children to do for him. This instruction angered Father, who turned on Therapist, declaring that she should not be “allowing his children to bully him” and that she was “undermin[ing] his parenting skills.” He also accused Therapist of “taking away his religious rights” by engaging in this role reversal, offering his view that Therapist was attempting to indoctrinate the children with her “secular views.”

¶21      In another session, Therapist instructed the children to write down the details of some of the different traumas they had experienced. The plan was to then have each child share their thoughts and have Father “meet the child[ren] emotionally” and “validate” their feelings, and then have an opportunity to explain the intention behind his actions. As the children began to explain what they had written, Father interrupted and began to argue and “discredit” what the children were saying. Father, who was now on his feet, tried to take control of the session, reaching out to grab the papers from the children so he could read them and address them in the manner he saw fit. At this point, Felicity asked “for a two-minute break,” which Therapist agreed would be a good idea. Watching the children defer to Therapist for permission to leave the room further agitated Father. He began telling Therapist that he was the one “who gets to decide what his children do” and that Therapist does not “get to undermine him and his parental authority.” Therapist tried to explain that it was okay to take a brief break, given that things were “getting rough,” and she stated that if Felicity needed a break, she should be allowed to have one. Father disagreed, situating himself in the doorway and blocking the exit. Therapist tried to maneuver Felicity around Father while gathering the children’s papers, at which point Father began “lunging” at Therapist and trying to snatch the papers out of her hands. Therapist was forced to hold the papers behind her back, telling Father the documents belonged to the children and he was not permitted to take them. Father started yelling that these were “his kids” and he was therefore “entitled” to see whatever they wrote on the papers. He then turned his anger on the children, telling them “it was time for them to be punished and that they need[ed] to have their consequence.” At this point, Therapist determined that the session was over, and she began escorting the children to the reception area. Father was following close behind, continuing his tirade and informing Therapist “what [he was] going to do to [Therapist], what [he was] going to do to the caseworkers, [and] what he’s going to do to the kids.”[5]

¶22 After that point, the therapists who had been working with the family came to the collective conclusion that group therapy sessions were doing more harm than good. For one thing, the sessions were “unproductive”; Father had “made it very clear, from the beginning, that he didn’t think [therapy] was necessary” and that he did not need to be there because “nothing needed to change” and he “wasn’t going to make changes.” In addition, and perhaps more significantly, the therapists “no longer felt that it was safe to continue having family therapy sessions that included [Father].” In particular, Therapist wrote in a report that, “[t]herapeutically speaking,” it would “be detrimental to the children to continue family therapy” because it would only further “damag[e] their relationship[s].” She believed, however, that it was critical that individual therapy still continue.

¶23 Given the tenor of the group therapy sessions, the GAL filed a motion to suspend all visitation—even in a therapeutic setting—between Father and the children. Father objected to this request, and he took the opportunity to advance his own view of the group therapy sessions. In a filing he made with the court, Father opined that the children were “being coached and groomed in an attempt to avoid reunification with” Parents. Father believed he—as religious leader of the family—had a right to review all recordings of the children’s individual therapy sessions, and he took issue with Therapist’s refusal to provide him any such recordings. Father concluded his filing with a request that a new therapist be appointed, one that would not engage in the “foisting of secular values” upon his family.[6] At a hearing in January 2019, the court ordered that therapeutic visitation with Chloe and Felicity be “discontinued until the issues are adjudicated.” But the court also indicated that the children “may visit” with Parents “if approved” by the DCFS caseworker and the GAL and “with input from the children’s therapists.” The court did not order that any change of therapists take place.

Mother’s Adjudication

¶24 Mother did not contest the allegations in the State’s petition, admitting to some of them and, with regard to the rest, electing to proceed pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.[7] Based on the uncontested allegations in the petition, the juvenile court found that all four children were neglected as to Mother. The court determined that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for [the] health, safety, morals or well being of the children.” The court determined that Noah was neglected because he was “at risk of being neglected or abused because another child in the same home [was] neglected or abused.”

¶25      At a dispositional hearing that took place a few weeks later, the juvenile court set reunification as the primary permanency goal, and it ordered that Mother receive reunification services and comply with a child and family plan (Mother’s Plan). In particular, the court ordered Mother to “complete a domestic violence assessment,” complete an “in home peer parenting” program, undergo a “neuro-psychological evaluation,” and “complete individual therapy.”

Father’s Adjudication

¶26      Father, on the other hand, elected to contest the allegations in the State’s petition, and the matter proceeded toward an adjudication trial, which was held over five trial days in March and April 2019. During the first day of trial, Father was represented by counsel, but he then requested that the court “replace his second appointed attorney”—Father had already switched appointed counsel once—which request the court denied. Father then elected to represent himself for the remainder of the trial, although the court determined that Father’s second appointed attorney should “continue as standby counsel.” During the trial, the court heard testimony from the four minor children, Branch President, several DCFS caseworkers, Oldest Sister, Brother-in-Law, and Father.

¶27 Following the trial, the court took the matter under advisement, and it issued a written decision in June 2019. In its conclusion, the court determined that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment has emotionally damaged the children.” The court’s findings, made in support of this determination, are remarkable and are worth describing in some detail.

¶28      The court found, by clear and convincing evidence, that the allegations contained in the State’s petition were generally correct. It found that, in May 2018, Chloe wrote an “alarming letter” to her teacher describing “her home environment” and expressing “her desire to kill herself on a constant basis.” The home environment in question was one dominated and directed by Father, who—in an ostensible attempt to “promot[e] the necessity and value of work and chores”—was “unhealthily” using these principles “to control and subjugate the children.” He assigned “continuous chores” to the children and demanded that each task be performed timely—often using the mantra “housework before homework”—and perfectly, assigning additional chores and requiring the children to stay home from school if chores were not performed to his satisfaction. And he required the children to pay him for even basic household privileges, like eating “fresh food” (as opposed to “expired food stores”), using the computer, and getting rides to school.

¶29      The court found that Father often used physical force—or the threat of it—to control Mother and the children. On one occasion, Father roughly “grabbed the car keys” from Mother’s hand, “which resulted in a cut on [Mother’s] hand.” On another occasion, Father “threw the family dog out the back door because the children would not kneel down for family prayer.” Once when Noah apparently did not kneel down fast enough for family prayer, Father threw “a headlamp” at him. Other times, Father “grabbed” the children “by the wrists to make them do something.” Father once “brought [Noah] to his feet by . . . grabbing the back of his hair,” and another time he “slapped [Hannah] on the mouth.”

¶30 The court found that Chloe was not the only one of the children experiencing suicidal ideations: it found that, “as a result of the continuing emotional trauma, [Felicity] felt trapped and became suicidal; she thought about dying as a way to escape the home.” Parents were not receptive or attentive to Chloe and Felicity in this regard; although Mother did take Chloe to one appointment for a mental health assessment, there was no follow-up or any actual treatment rendered and her “suicidal thoughts were not properly addressed.” Indeed, the children were told not to speak to anyone—including church leaders and DCFS officials—about the conditions in the home, and they were threatened with punishment if they did. Felicity was even told, by one of the Parents, that “if [Chloe] were to commit suicide, it would be her fault.”

¶31 The court also found credible Branch President’s account of his meeting with the girls in August 2018, and found that the meeting occurred as set forth in Branch President’s letter to DCFS (as described above). And it found that DCFS had acted appropriately by seeking a warrant for removal in August 2018.

¶32 The court then examined the statutory definition of “emotional abuse,” as well as Utah case law interpreting that definition. The court specifically noted that a finding of “abuse” requires a finding of “harm,” which—as applied to emotional abuse—requires a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” With this standard in mind, the court concluded that all four children had been “emotionally abused by” Father and that, in addition, Chloe was also “a neglected child due to the lack of proper parental care” from Father. The court found that the threats Father constantly made to the children had “caused emotional upheaval” in their lives “and negatively impacted [their] development.” And the court found “a continuing pattern of emotional maltreatment of the children which [had] resulted in two of the children considering suicide as an option to end the maltreatment,” and it found that “these suicidal ideations and thoughts demonstrate a serious impairment to” the affected children’s “psychological functioning.” In particular, the court found that Father,

[t]hrough the use of chores, yelling, physical control, the use of access to food, the harm to a family pet, insulting comments, blaming and payment for basic things, and the daily arguing and sometime[s] physically aggressive behavior between . . . [P]arents that the children witness, . . . has created a hostile environment, which is manifested in the children feeling unsafe and being terrified of being at home with [P]arents.

The court concluded by noting that “this ongoing abusive environment has emotionally damaged the children.” While the court did not find “physical abuse as defined” by Utah law, it did conclude that “the children’s testimony was credible about the use of physical force to submit to the requests of [Father].” The court concluded that these “physical actions” on Father’s part “were part of” the “emotionally abusive parenting style” that he “used to intimidate and control the children.”

¶33 Father appealed the court’s adjudication order, but he raised only one argument—a procedural one—in his appellate petition. Specifically, he asserted that “the juvenile court lacked jurisdiction to enter the [adjudication] order because the adjudication trial was not held within sixty days after the shelter hearing,” which Father asserted was required by Utah law. Father mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished order, we rejected Father’s procedural argument and affirmed the adjudication order, concluding that Father had not preserved his procedural argument in the juvenile court and that Father could not demonstrate plain error.

¶34      Soon after the juvenile court issued its adjudication ruling, it held a dispositional hearing regarding Father. At the conclusion of that hearing, the court set a primary permanency goal of reunification and ordered that Father receive reunification services. The court also ordered that Father “comply with all of the provisions of” a child and family plan (Father’s Plan). Among other things, Father’s Plan required Father to obtain a mental health evaluation, follow any and all recommendations made by the evaluator, and participate in therapy.

The Permanency Hearing

¶35 A few months after entering its adjudication order regarding Father, the court held a permanency hearing, which took place over three trial days in September and October 2019. Again, the court heard testimony from members of the family as well as from therapists, DCFS caseworkers, and others. At the conclusion of the hearing, the court found, as to both Parents, that DCFS had made “reasonable efforts” to facilitate Parents’ compliance with their plans and to facilitate reunification.

¶36      With regard to Mother, the court found that she had made some positive efforts to comply with Mother’s Plan. In particular, Mother had “participated in visits with the children,” “obtained a psychological evaluation and engaged in therapy,” and completed an “assessment for domestic violence.” But the court also noted that Mother “continues to not give any credence to the children’s testimony about the conditions and treatment within the home” and, because of this belief, “no progress has been accomplished in family therapy.” As part of Mother’s Plan, Mother had also been instructed “to provide a safe and stable home.” The court found that Mother was not “capable or willing to do this given the continued denial of any concerns of emotional abuse of the children with her or [Father].” Thus, even though Mother had made some progress “on a number of the services ordered,” the court concluded that she had made insufficient progress “in the most essential areas of family therapy and personal insight to have the children safely returned home at this time or in the next 90 days.” For those reasons, the court terminated reunification services for Mother.

¶37      With regard to Father, the juvenile court found that he had “not substantially complied with” Father’s Plan. First of all, Father had refused “to obtain a mental health evaluation,” despite the fact that DCFS caseworkers had set up appointments for Father to receive the evaluation and had “encourage[d] him to complete” it “prior to the permanency hearing as it would show his efforts in the reunification process.” In addition, the court found that Father had failed to “participate in meaningful family therapy.” And most significantly, it found that Father had failed in his overarching task of providing “an emotionally safe or stable home to which the children may be returned.” The court specifically noted that Father, through his testimony at the hearing, had shown that there had “been no change in his perception of the facts which facilitated the [S]tate’s involvement.” Accordingly, the court terminated reunification services for Father and set adoption as the new “primary permanency goal” for the children, with a secondary goal of permanent custody and guardianship with Oldest Sister.

The Termination Trial

¶38 In October 2019, soon after the permanency hearing, the State filed a petition to terminate Parents’ parental rights regarding all four minor children. But due to a series of delays— caused by numerous factors, including motions to disqualify the judge, attempts to appeal certain orders, requests by both Parents for new counsel, disputes over discovery and subpoenas, and (most significantly) the emergence of the COVID-19 pandemic— the termination trial did not begin until July 2021. And the trial, once it began, was quite lengthy, spanning parts of nineteen trial days and involving the testimony of more than twenty different witnesses. Due to scheduling and pandemic-related concerns, the juvenile court was unable to hold the trial in one large block of time; instead, the trial occurred on scattered dates over the course of eleven months. In the meantime, both Chloe and Felicity turned eighteen and became adults, and they each chose to be adopted— as adults and in separate district court proceedings—by Oldest Sister and Brother-in-Law. By the time the termination trial ended, only Hannah and Noah were still minors and still within the jurisdiction of the juvenile court.

¶39      First to testify at trial were three DCFS caseworkers, who told the court that it had been difficult working with Parents, especially Father. One testified that whenever difficult subjects arose, Father would become “visibly upset,” raise his voice, and stand very close to her and wave his finger. Mother was less confrontational, but the caseworkers reported that the children felt that they could not be entirely honest with Mother “because they felt that she was just collecting information to use against them” and “that she was taking notes to provide to [Father].” At one point, one of the caseworkers had advised Mother that it would be “unlikely” that her reunification with the children would be successful “if [Mother] and [Father] were still together” and if Father continued to refuse to engage in services.

¶40 The court also heard about an incident in October 2019 when Father and a caseworker had gone with Chloe to visit a child psychiatrist (Psychiatrist) to discuss Chloe’s suicidal ideations. Psychiatrist testified that Father made it clear from the beginning that he was against the appointment because he believed there was “nothing wrong” with Chloe and that she “did not need medication.” Father became “confrontational” with Psychiatrist, in terms of both his “voice tone” and his “physical posturing,” and demanded to see a copy of Psychiatrist’s credentials. Father acted similarly toward Psychiatrist’s office staff. Psychiatrist found Father’s behavior so remarkably inappropriate that he wrote a letter to the court—the first time Psychiatrist had done so in decades of practice—asking that Father be kept away from his office and prohibited from contacting his employees regarding Chloe’s medical care.

¶41      Mother’s therapist testified that Mother felt that DCFS became involved only because the children had made up “a bunch of lies” just so they could have “an easier life.” Mother also had a habit, similar to Father’s, of raising her voice and shaking her finger at the therapist and would accuse her “of being involved” in “the efforts” to keep the children “away from [Mother].” The therapist met with Mother seventeen times, but she indicated that, “at the point of discharge,” Mother had made “little progress.”

¶42      The court also heard testimony—from DCFS caseworkers as well as from the psychologist tasked to perform the assessment—that Father refused to undergo a mental health evaluation, as ordered by the court pursuant to Father’s Plan. Father’s stated concern was that he did not want DCFS to have a copy of the psychologist’s eventual report, apparently because he believed that DCFS was “kind of out to get him”; the psychologist explained to Father that he had been retained by DCFS and therefore DCFS was going to get a copy of the report. The psychologist testified that he had completed more than 4,000 assessments for DCFS over several decades and that this was the first time anyone had refused to participate on the ground that they did not want DCFS to receive a copy of the report.

¶43 Mother, on the other hand, did participate in a mental health evaluation; the psychologist who performed her evaluation testified that Mother had dependent personality disorder, obsessive-compulsive personality disorder, and dementia. The psychologist went on to note that she could not rule out aphasia as another possible diagnosis but, to be certain, Mother would need to undergo an evaluation with someone more qualified in speech and language. According to this psychologist, someone in Mother’s position would likely struggle with daily life and would need “a lot of assistance and accommodations.”

¶44      Oldest Sister testified, and she offered her perspective on what it had been like to live with Parents; in addition, she told the court about one incident that took place after she had moved out. She recounted how she would sometimes return to Parents’ house to visit her siblings, and on one such occasion, Father struck Oldest Sister. The incident began with Father demanding that, while Oldest Sister was visiting, she “clean the house” for Parents. Oldest Sister decided to stand up to Father and tell him that she was happy to help around the house while she was visiting but that she was not there to be Father’s “maid.” At this, Father “backhanded” Oldest Sister, knocking her to the floor. While on the floor, Oldest Sister threatened to call the police, at which point Mother “jumped on top” of her, warning her not to call law enforcement and that if she did, it would “ruin” the family.

¶45      Oldest Sister also offered her account of the circumstances that caused DCFS to become involved in this case, and she described that she has a strong bond of love and affection for her siblings and that they are thriving in her care. She noted that she and Brother-in-Law have three children of their own, and she stated that her four siblings have integrated well with her three children. She also testified that her siblings “know that we love them no matter what” and that they are no longer “afraid.” She told the court that she was ready and willing to adopt all four of her siblings—she had not yet adopted Chloe and Felicity—even if it meant that her own relationship with Parents would suffer.

¶46 The court also heard testimony from all four minor children, which testimony we describe here in some detail.

¶47 Chloe’s Testimony: Chloe testified over two trial days in July and August 2021, just before she turned nineteen and was about to leave on a religious mission. Chloe described herself as a religious person, and she noted her appreciation to Parents for teaching her religious principles. But she expressed disagreement with the manner in which Father often exercised his authority within the family, offering her view that Father would “force” religion “down [the children’s] throats” and “use it against” them, which Chloe believed “was tearing [the family] apart.” She stated that it had been the children’s idea to prohibit Father from talking about religion during group therapy sessions. At home, Chloe had never felt like she could express herself or “say anything,” because Father always had to be “in control” and it was always “his way or the highway.” She described how the children were “scared” of Father and would sometimes hide in a closet, “all huddled up together,” because they were “terrified.” Chloe described instances where she had witnessed Father physically hurting members of the family. On one occasion, shortly before Older Brother had moved out, she saw Older Brother arguing with Father when Father “grabbed” Older Brother and “put him in a choke hold.” When Older Brother broke free of Father’s grasp, Chloe witnessed Father “push[ing] him down the stairs.” She confirmed that she had been “suicidal when [she] was in [Parents’] house.” When she told Father about it, his response was, “If you commit suicide, you’re going to go to hell.” She also confirmed that Father had interfered with a medical appointment in which she was attempting to see Psychiatrist to discuss medication and treatment. And she described how Father would make the children eat expired food, even sometimes when it had “mold on it” or when “the expiration date [was] . . . more than two or three or sometimes even five years past.”

¶48 In addition, Chloe offered her view that Father had not “done the things the [c]ourt asked him to do” in order to reunify with his children, and she stated that she did not think she could have meaningful contact with Father going forward. She viewed Father’s unwillingness to engage with reunification services as a sign that he “didn’t want us,” because if Father had wanted them, he “would have gone through the process” that the court set out instead of “fighting so hard to be like ‘I’m right and you’re not going to tell me what I can and cannot do’” regarding the children.

¶49      Chloe was more equivocal about Mother, stating that she believed she could potentially have a good relationship with Mother if Mother were no longer with Father, and that she and Felicity had expressed that sentiment to Mother at one point. In Chloe’s view, Mother acted merely as Father’s “puppet” and did not feel free to offer “her true feelings.” Mother reacted negatively to the girls’ suggestion that she should leave Father, telling Chloe, “[D]on’t you dare ever make me choose.”

¶50      Chloe acknowledged that, as an adult, she had chosen to be adopted by Oldest Sister and Brother-in-Law, and she stated that she had wanted that outcome all along, even when she had been a minor, and that she had chosen adoption because she wanted “a loving and supportive” place “to call home” and didn’t feel like she ever had that with Parents. She noted that there had been challenges, initially, transitioning from “sister to daughter overnight” in relation to Oldest Sister, but she described her life with Oldest Sister and Brother-in-Law as, on balance, “pretty freaking amazing.”

¶51      Felicity’s Testimony: Felicity testified in November 2021, about a month before she turned eighteen. She stated that her home with Parents was “really scary” and not “safe.” Parents “yelled all the time,” fed the children “expired” food unless they paid Father for fresh food, and made the children do endless chores that somehow could never be “done good enough.” She recalled one occasion in which Father kept her up until 2:00 a.m. on a school night because he thought she hadn’t cleaned the kitchen counters well enough; Felicity finally went to bed, but Father came into her room “and poured water over [her] head” to wake her up and made her “go finish” cleaning the counters. And she recalled another occasion in which Father threw her dog outside because she “didn’t kneel down for prayers fast enough.”

¶52 Felicity confirmed that, while she lived with Parents, she struggled with “anxiety and depression” and “thought about killing [her]self.” She perceived Parents as being unsupportive of her during this time; Mother in particular was resistant to helping Felicity obtain medication for her depression, telling her instead to just “read the scriptures.”

¶53      Since being placed with Oldest Sister and Brother-in-Law, Felicity has had visits with Parents, but she testified that she doesn’t like the visits. During the visits, Parents would “act like . . . everything’s fine” and would refuse to engage with the problems in the home. She stated that the visits with Father, in particular, didn’t go well. On one occasion, she asked to take a break while Father was talking to her, and Father became angry, telling her she was not allowed to leave the room while he was addressing her. After that visit, she and the caseworkers came up with a kind of “safe word” for her to use if she needed a break during a visit: she was to say that she needed to use the restroom.

¶54 She confirmed that group therapy with Parents had not been productive because Parents “would just deny” everything and would “refuse to say that they did something wrong.” She offered her perception that Parents, during the reunification period, “haven’t done anything to change.”

¶55      Finally, Felicity testified that she liked living with Oldest Sister and Brother-in-Law because “they’re kind and they care about” her and she feels like she is “actually loved.” She testified that she does not “want to have a relationship with” either one of her Parents and that she wanted to be adopted by Oldest Sister and Brother-in-Law. Indeed, in March 2022—before the trial ended but after she testified and after she turned eighteen—she elected to be adopted by Oldest Sister and Brother-in-Law.

¶56      Hannah’s Testimony: Hannah testified in September 2021, when she was fifteen. She confirmed that she and her siblings had been removed from Parents’ home because “it wasn’t really safe” there. She testified that there was “a lot of contention” in the home and that there was “so much screaming and yelling” that she and Noah would sometimes “go hide in a closet” because they were “really scared.” She discussed several incidents in which Father used physical force, once on Mother—when he forcibly “grabbed the keys” out of her hand—and sometimes on the children: she described Father throwing a “headlamp” at Noah and once “slapp[ing] her across the face.” Often, the yelling was about the children’s chores and involved Parents indicating that they were dissatisfied with the manner in which the children had performed their tasks. She said that “every time” Parents started yelling, she “was afraid they were going to hit” her, which caused her “anxiety” and was “really scary.” She testified that, in those situations, she “couldn’t talk back” because, if she did, she would “get in more trouble.”

¶57      She testified that the post-removal visits were “pretty scary at first” because she worried that Parents “were going to take all of their anger” about the removal “out on” the children. Hannah did not believe that the visits were productive, and she testified that she felt “released” and “happy” when visits with Father were “canceled.” She believed that the group therapy sessions, in particular, were unhelpful, largely because Parents refused to ever acknowledge that they might have done anything wrong.

¶58      And she testified that living with Oldest Sister and Brother-in-Law was “pretty awesome” because she feels “loved there” and feels “like someone cares for” her and that she wasn’t “scared anymore.” She told the court that she wanted to be adopted by Oldest Sister and Brother-in-Law, and that she would “run away” if she were forced to return to Parents’ home.

¶59 Noah’s Testimony: Noah testified in September 2021, a few weeks before his thirteenth birthday. He also testified that Parents’ home “wasn’t a safe environment” due to the constant “yelling and contention,” offering his view that “there was almost never . . . peace and happiness.” He recalled Parents waking him up by spraying him “with a water bottle,” and he recalled the headlamp incident.

¶60 His view of the post-removal visits was that he “didn’t really want to have them” because he didn’t “want to have a relationship with [Parents] anymore.” He found the visits “odd at first” but then, after a while, he just found them “boring” and “a waste of time” because Parents would just ask “the same questions.” He also believed that Parents “wouldn’t try and improve” themselves through the visits and group therapy.

¶61      And Noah testified that he “really like[s]” living with Oldest Sister and Brother-in-Law and that he wants to “live permanently” with them. He testified that Oldest Sister’s home is “a loving environment” where they “help each other . . . try to get better and improve.” He stated that he doesn’t “want [Parents] to be [his] parents,” and that he would not “feel safe” if he was returned to Parents’ custody. He expressed a desire “to have [Oldest Sister and Brother-in-Law] be [his] parents.”

¶62      Finally, the court heard extensive testimony from Parents. Father testified over three trial days and was the only witness to testify on two of those days. Mother also testified over three trial days. For the most part, in the interest of brevity, we present their testimony through our description of the juvenile court’s ruling, set forth immediately below. But in general, Parents refused to acknowledge that they had acted in any way inappropriately, and they defended their behavior as a means of instilling discipline and religious-based values in their children.

The Court’s Post-Trial Ruling

¶63 Following the presentation of evidence, the attorneys presented their closing arguments over parts of two days. After that, the juvenile court took the matter under advisement and, a few weeks later, issued a fifty-three-page written decision. In that decision, the court summarized the testimony that had been presented; in particular, the court spent some twelve pages summarizing Parents’ lengthy testimony.

¶64 The court noted that Father described Oldest Sister as “spoiled” and described Chloe’s expression of suicidal ideations as “play[ing] the suicide card.” Father acknowledged that he had awakened the children with water, thrown a headlamp at Noah, and “raised his voice” during the meeting with Branch President. But he justified these behaviors as merely strict religious-based parenting. The court noted Father’s stated belief that “the [State] had invaded his family” and was “taking over his stewardship,” as well as Father’s contention that the assigned therapists “had replaced his religious beliefs” by instituting rules for the therapy sessions with which he disagreed. And the court noted Father’s testimony that Branch President was “highly judgmental and lacking in integrity,” as well as Father’s stated belief that DCFS, Branch President, and Oldest Sister “got together with malice to engage in child kidnapping and child trafficking” so that Oldest Sister could “enslave[]” the children to “serve [her] family.”

¶65      With regard to Mother, the court noted that she had been married to Father for thirty-five years and “intends to stay married to him.” Mother testified that, at one point, the GAL and DCFS caseworkers told her that “she had to choose between [Father] and the children,” and that she “told them no, that they are not going to break up the family.” The court noted Mother’s belief that she had attempted to comply with Mother’s Plan, and that Mother “wants to have a special relationship with all of her children and would like the family to be together.”

¶66 After summarizing the voluminous testimony presented at trial, the court made certain findings and conclusions. It found that Father “uses religious, familial, and authoritative vocabulary to intimidate the children,” and that he “has used his physical presence” in that manner as well “by standing up, making his body larger, [and] power posing [to] the children.” The court found that Father “has not engaged in purposeful family therapy with the children to address the issues” in the case and that Father “has never acknowledged that he” might bear some responsibility for the situation. The court noted that the “family never moved from square one in talking about the real issues that led [Chloe] to be suicidal and had [Noah] and [Hannah] hiding in the closet.” The court declared that, “[w]ithout addressing and correcting the problems in the home as to parenting style and the environment, the children and [Father] will never have a healthy relationship.” The court found that “there does not exist a bond of love and affection between the children and [Father].” And it observed that Father certainly “has the constitutional right to parent his children” but that the “children also have the right to be free from emotional abuse.” In summary, the court found that Father “is an unfit parent” and that Hannah and Noah could not “safely be returned to [Parents’] home to reside with [Father] since he has made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.”

¶67    As to Mother, the court found that she “supported [Father] in his harmful treatment of the children as he tried to control their lives,” and that she “minimized the emotional maltreatment that was occurring in the home and the extent of the emotional trauma” the children experienced. It found that Mother “continues to deny . . . any emotional . . . maltreatment of the children,” that she “laughs when questioned about these things and continues to blame the children and [Oldest Sister] for [DCFS’s] intervention,” and that she “has never considered for a moment that she or [Father] have done anything untoward or harmful to the children.” The court found that Mother’s “continued association with [Father] puts the children at risk should they be returned to her custody and care.” The court found grounds sufficient to justify termination of her parental rights, concluding that Mother was “unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement” and that she had made only “token efforts to eliminate the risk of serious harm to the children.”

¶68      Having found grounds sufficient to justify termination of Parents’ rights, the court then turned to the best-interest question. The court determined “that it is in the children’s best interest and strictly necessary to terminate” Father’s parental rights. The court considered whether to impose a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law, but it did “not find this alternative to be in the children’s best interest.” The court noted that both Branch President and Psychiatrist had considered Father so aberrant that—in an effort to keep Father away from the children—they had each taken action they had never taken before. And the court noted that, “if permanent custody and guardianship were granted” to Oldest Sister, Father “would still be in the orbit of the two remaining [minor] children” and would be able to “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.” For these reasons, the court concluded that the State had demonstrated, by clear and convincing evidence, that termination of Father’s rights was strictly necessary to advance the children’s best interest. The court therefore ordered that Father’s rights be terminated.

¶69 As to Mother, however, the court reached a different conclusion. The court first noted “the legislatively mandated position that wherever possible family life should be strengthened and preserved,” and it observed that the children were in the custody of a relative—Oldest Sister—and were not “in a home unrelated to” Parents. The court noted that the children’s visits with Mother had gone better than their visits with Father, and that their relationship with Mother—unlike their relationship with Father—does not cause “the children emotional or mental harm.” Accordingly, the court concluded that, with regard to Mother, “the children can be equally protected and benefited by an option other than termination.” The court therefore declined to terminate Mother’s rights, and it placed the children in a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law.

The GAL’s Rule 59 Motion

¶70      Shortly after the issuance of the court’s initial post-trial ruling, the GAL filed a motion—grounded in rule 59 of the Utah Rules of Civil Procedure—requesting that the court reconsider its decision not to terminate Mother’s parental rights. The GAL asserted that, in making its decision not to terminate Mother’s rights, the court had viewed matters too much from Mother’s point of view and not enough from the children’s point of view. Mother opposed the motion.

¶71      During a hearing on the motion, the GAL began to discuss events that had occurred since the conclusion of the termination trial, and Mother’s counsel objected. The court determined that it would permit counsel to “put in a memorandum or affidavit” the “additional information supporting” its argument, and it would then allow all other parties “to file an affidavit or other response.” Following the hearing, the GAL filed with the court an affidavit from Brother-in-Law in which he described, among other things, the effects that post-trial visits with Mother had been having on Hannah and Noah.

¶72 A few weeks later, the juvenile court issued a written ruling granting the GAL’s motion. In the introductory paragraph of that ruling, the court noted that, in preparing to make its decision, it had reviewed “the filings and arguments of the parties, the oral argument on the [m]otion and the prior testimony from the termination trial and the original findings and order.” But the court made no specific mention, anywhere in its ruling, of the post-trial events described in Brother-in-Law’s latest affidavit. Instead, the court stated that it was reconsidering its prior ruling and, this time, it was ordering termination of Mother’s parental rights; it explained that, in its initial ruling, it had “failed to give the proper weight to the children’s expressed wishes to be adopted” by Oldest Sister and Brother-in-Law. The court noted that the “children have been direct in seeking to be adopted.” And it noted that it was statutorily commanded to “give the minor’s wishes added weight” if the minor in question was fourteen years old or older, a stipulation that, in the court’s view, applied to all of the children (Noah having recently turned fourteen). After reconsidering its prior decision in light of the added weight given to the children’s stated wishes, the court determined that termination of Mother’s rights was in the children’s best interest, and it therefore ordered that her rights be terminated.

ISSUES AND STANDARDS OF REVIEW

¶73      Parents now appeal, and they raise several issues for our review. First, they contend that the juvenile court violated their constitutional rights. “Constitutional issues, including questions regarding due process, are questions of law,” and the conclusions of the juvenile court on such issues are reviewed “for correctness.” In re adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (quotation simplified). Along with this argument, Parents also assert that the constitutional issues they raise indicate that the court erred in concluding that DCFS made reasonable efforts to facilitate reunification. To the extent that Parents’ constitutional arguments raise “reasonable efforts” questions, we review the court’s ruling more deferentially. See In re P.J.R., 2023 UT App 27, ¶ 24, 527 P.3d 1114 (“A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)), cert. denied, 534 P.3d 750 (Utah 2023).

¶74      Second, Parents assert that their respective attorneys provided ineffective assistance of counsel at various points throughout the litigation. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re D.G., 2022 UT App 128, ¶ 6, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023).

¶75 Third, Father argues that some of the juvenile court’s factual findings were against the clear weight of the evidence. “In order to overturn the juvenile court’s decision the result must be against the clear weight of the evidence or leave [this] court with a firm and definite conviction that a mistake has been made.” In re G.D., 2021 UT 19, ¶ 70, 491 P.3d 867 (quotation simplified).

¶76      Finally, while Parents do not take issue with the juvenile court’s ruling that statutory grounds for termination existed, Parents do challenge the court’s ruling that termination was strictly necessary to promote the children’s best interest. We review a trial court’s “best interest determination deferentially, and we will overturn it only if [the court] either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). But “because the evidentiary standard applicable in termination of parental rights cases is the clear and convincing evidence standard, we will assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified).

¶77 Along with her best-interest argument, Mother raises an additional issue: she asserts that the juvenile court erred by allowing the GAL to submit new evidence of post-trial matters in support of the rule 59 motion. “We generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89 (quotation simplified). And we will not reverse that decision if the only errors in it were harmless. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”); Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564 (“[A] harmless error does not require reversal.”), cert. denied, 320 P.3d 676 (Utah 2014).

ANALYSIS

  1. Constitutional Claims

¶78      We first address Parents’ assertion that the “juvenile court process” that resulted in the termination of their parental rights violated their constitutional rights. We describe Parents’ specific claims in more detail below, but before we discuss the particulars of those claims, we pause to emphasize two critical background points, one legal and one factual, that help frame our analysis.

¶79      The legal background point is straightforward and should go without saying: a parent has no general right, whether statutory or constitutional, to abuse or neglect a child for religious reasons.

¶80 Utah’s child welfare statutes regarding abuse of a child have no exceptions allowing abuse to occur on religious grounds. In the child welfare context, “[a]buse” means (among other things) “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code § 80-1-102(1)(a). The governing statute specifies that “reasonable discipline” of a child does not constitute “[a]buse,” nor does “reasonable and necessary physical restraint or force” applied in defense from or protection of the child or others. Id. § 80-1-102(1)(b). But there is no statutory exception excusing abuse simply because it might be religiously motivated.

¶81      Similarly, in the child welfare context, “[n]eglect” includes “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent,” and includes “action or inaction causing . . . failure or refusal of a parent . . . to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well­being.” Id. § 80-1-102(58)(a)(ii), (iii). The statutory definition of neglect does include one religious-based exception: a parent who is “legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child” has not neglected that child. Id. § 80-1-102(58)(b)(i).[8] But other than this narrow exception, Utah’s statutes offer no room for a parent, on religious grounds, to take actions that would otherwise constitute neglect of a child.

¶82      Nor is there any constitutional right to abuse or neglect a child in the name of religion. To be sure, parents have a right to teach their children religious principles and to encourage them to comply with the tenets of a chosen religion. Kingston v. Kingston, 2022 UT 43, ¶ 24, 532 P.3d 958 (stating that “parents have a fundamental right” under the United States Constitution “to encourage their children in the practice of religion”). But such rights peter out where a parent’s religious practices result in mistreatment of a child. See Zummo v. Zummo, 574 A.2d 1130, 1154–55 (Pa. Super. Ct. 1990) (noting that parents are “free to provide religious exposure and instruction” to their child as they see fit, “unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child” (quoted in Kingston, 2022 UT 43, ¶ 67)); see also Prince v. Massachusetts321 U.S. 158, 166–67 (1944) (stating that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including in “matters of conscience and religious conviction,” and noting that the state’s “authority” in this regard “is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience”); Koch v. Koch, 207 So. 3d 914, 915 (Fla. Dist. Ct. App. 2016) (noting courts’ ability to restrict a parent’s rights where there is “a clear, affirmative showing that the [parent’s] religious activities . . . will be harmful to the child” (quotation simplified)); In re Edward C., 178 Cal. Rptr. 694, 699 (Cal. Ct. App. 1981) (“Mistreatment of a child . . . is not privileged because it is imposed in the guise of freedom of religious expression.”); Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 J.L. & Fam. Stud. 391, 405 (2010) (“Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of ‘religious immunity.’”).

¶83 Next, the factual background point is simply this: as discussed above, Parents have already been adjudicated to have abused or neglected the children, and those adjudications were not substantively challenged on appeal.

¶84 With regard to Father, the juvenile court found—after a five-day adjudication hearing—that Father had “emotionally abused” all four children. The court specifically discussed the rather stringent statutory definition of “emotional abuse” and recognized that it required a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See Utah Code § 80-1-102(37)(b). But the court comfortably made such findings with regard to Father, concluding that Father had engaged in “a continuing pattern of emotional maltreatment of the children which has resulted in two of the children considering suicide as an option to end the maltreatment.” The court also found that Father had “created a hostile environment” for the children that caused them to suffer “emotional damage[],” and it found that Father’s “use of physical force” was part of the “abusive parenting style” that he “used to intimidate and control the children.”

¶85 With regard to Mother, the court determined—based on Mother’s own rule 34(e) admissions—that all four children were neglected. In particular, the court concluded that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.” And the court found that Noah was neglected as to Mother since he was “at risk of being neglected or abused because another child in the same home is neglected or abused.”

¶86 Mother did not appeal the court’s adjudication order. Father did, but he raised only one argument—a procedural one— in his appellate petition; he mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished decision, we rejected Father’s procedural argument and affirmed his adjudication order.

¶87 Thus, Parents have been adjudicated to have abused or neglected the children, and those adjudications were either not appealed or were affirmed on appeal. In light of these facts, Father’s attorney agreed, at oral argument before this court, that the adjudication order is now part of the case and that we, for purposes of this appeal, must therefore take it “as it is.” As we understand it, this concession is in keeping with Utah law. An adjudication order is “final for purposes of appeal,” see In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037, and “where a final ruling or order of the trial court goes unchallenged by appeal, such becomes the law of the case, and is not thereafter subject to later challenge,” see SRB Inv. Co. v. Spencer, 2023 UT App 120, ¶ 29, 538 P.3d 231 (quotation simplified). We have, on several occasions, refused to allow parents to re-litigate adjudication orders in the context of appeals from later orders. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768 (stating that “matters relating to the adjudication hearing are barred” from consideration on appeal from a termination order where the parent “did not appeal the adjudication order”); see also In re E.T., 2014 UT App 206, ¶ 2, 335 P.3d 394 (per curiam) (stating that where a parent “failed to timely appeal [an] adjudication order, we lack jurisdiction to consider an appeal of that order” in an appeal from a later order).

¶88 Given these background principles and facts, Parents cannot—and here make no serious attempt to[9]—argue that the adjudication findings should be reversed, or that their underlying abuse and neglect should be excused on religious grounds. Instead, they make narrower constitutional arguments.

¶89      They begin by asserting, in general terms, that the “juvenile court process” that led to the termination of their parental rights violated their constitutional rights to parent their children and, in particular, their right to encourage their children in the practice of religion. They then point out—citing Kingston, 2022 UT 43, ¶ 29— that “any state interference with parents’ right to encourage their children in the practice of religion . . . is subject to strict scrutiny.” And they conclude by arguing that their right to encourage their children regarding religion was infringed during the case, specifically asserting that DCFS “cannot have made reasonable efforts to provide reunification services if it does not employ the least restrictive means available.”

¶90 As examples of what they claim to have been “state interference” with their right to encourage the children in the practice of religion, Parents point to two things: (1) the rule Therapist put in place, at the behest of the children, that Parents not discuss religion with the children during family therapy sessions; and (2) the court’s refusal to grant Father’s request that Therapist be removed from the case and replaced with “a therapist more understanding of his religious beliefs.”[10] We find Parents’ arguments unpersuasive.

¶91 We first discuss Parents’ arguments regarding the rule forbidding them from discussing religion during family therapy. In this case, we need not decide whether Parents’ constitutional right to encourage their children in the practice of religion requires the State to allow Parents to offer such encouragement during therapy sessions provided by the State as part of reunification services. Nor do we need to decide—even assuming there is such a requirement—whether the rule imposed here satisfied strict scrutiny review by being “narrowly tailored to protect a compelling government interest.” Id. ¶ 61 (quotation simplified). Given the record before us, we may avoid these questions because even assuming, for purposes of the discussion only, that there was a constitutional violation in this regard, any such violation was clearly harmless here. See In re A.R., 2017 UT App 153, ¶¶ 11−13, 402 P.3d 206 (affirming the termination of a parent’s rights in the face of an asserted constitutional violation because, even if the court committed constitutional error, the error was harmless); see also In re I.M.L., 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 (“Generally, we avoid reaching constitutional issues if a case can be decided on other grounds.”). The evidence presented at the termination trial showed that Father paid no heed to the rule in any event and simply went ahead—against the children’s request, communicated through Therapist—and discussed religion with the children during the family therapy sessions.[11] Given Father’s refusal to follow it, Parents do not explain how the rule’s short-lived existence made any difference here; in particular, they make no effort to demonstrate how the therapy sessions would have been different or more productive had the rule not been in place. Moreover, and perhaps most significantly, the rule was only in effect for about five weeks, because the juvenile court ordered it removed at the first opportunity. As soon as Parents asked that the rule be removed, the court granted that request; Parents do not explain what the juvenile court could have done better or more speedily with regard to this rule. In short, we see no reasonable likelihood that the temporary imposition of a rule disallowing Parents to discuss religion during therapy sessions affected the outcome of the proceedings.[12]

¶92 Next, with regard to Parents’ second example of asserted “state interference”—their claim that they had a constitutional right to a therapist whose religious beliefs matched their own— we likewise reject Parents’ argument without entirely reaching its merits. Even if we assume—without deciding, and for purposes of the argument only—that Parents had a constitutional right to a therapist whose religious beliefs matched their own, Parents’ argument on this point nevertheless fails because Parents have not explained exactly how—or even whether—Therapist’s religious beliefs or practices differed from their own. The record is silent as to what Therapist’s religion was—we therefore do not know whether she was a member of Parents’ religion or not. And Father conceded, during his testimony, that his objection to Therapist was not based on whether she shared his religion or not, explaining that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.” But in his briefing, Father makes no effort to identify what those “values or principles” are, whether they derive from his religion or from some other source, or how they might have differed from Therapist’s religious beliefs and practices.

¶93 Indeed, the GAL argues, with some force, that Father’s objectionable behavior was not grounded in the tenets of any religion but, instead, simply amounted to Father’s personal belief that, as head of the household, he had the right to bully and intimidate his children and to say whatever he wanted whenever he wanted during family therapy sessions. After all, even Father’s own religious leader considered Father’s similar behavior during the meeting at the church to be inappropriate and by no means compelled by tenets of their shared religion. And it is noteworthy that all four children—even after removal and despite the abuse and neglect they experienced—have remained steadfast adherents of the religion they share with Parents. Thus, one might reasonably conclude that Father’s conflict with Therapist had nothing whatsoever to do with specific religious tenets and everything to do with Father’s personality. At a minimum, Parents have not carried their appellate burden of persuading us that the situation is otherwise. And we note that courts have rejected similar claims in analogous cases on the basis that the parent had not “establish[ed] a clear relationship between” his or her “religious faith” and the specific “discipline” imposed on the children. See, e.g.Jakab v. Jakab, 664 A.2d 261, 265 (Vt. 1995); see also In re H.M., 144 N.E.3d 1124, 1148 (Ohio Ct. App. 2019) (noting that the “record is scant on defining the parents’ actual religious beliefs” and whether they motivated the behavior in question).

¶94      For these reasons, we see no constitutional infirmity in the juvenile court’s refusal to grant Father’s request for a different family therapist in this case.

¶95      We note again that Parents’ overarching argument is that

“the State could not have made reasonable efforts if its actions do not pass strict scrutiny.”[13] Yet as to the two ways Parents allege that the State’s actions do not pass muster, Parents have in one instance failed to show any actual infringement of a constitutional right, and in the other they have failed to persuade us that reunification services would have been more successful in the absence of the alleged constitutional violation. Thus, we perceive no error in the juvenile court’s reasonable efforts determination, and we reject Parents’ claims that, during the “juvenile court process,” their constitutional rights were violated.

  1. Ineffective Assistance of Counsel

¶96 Next, Parents assert that they received ineffective assistance of counsel during the termination proceedings. “To establish [an] ineffective assistance of counsel claim, [a party] must show that counsel’s performance was objectively deficient and that counsel’s deficient performance prejudiced the case.” In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). “Failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim,” and therefore we are “free to address [Parents’] claims under either prong.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified).

¶97 Parents each make one argument in this regard. We first address Father’s contention that his attorney was ineffective for not objecting to “improper bolstering evidence” presented during the termination trial. Second, we address Mother’s argument that her attorney rendered ineffective assistance “by failing to object to” the terms of Mother’s Plan. For the reasons set forth below, we conclude that neither Father nor Mother has borne their burden of establishing that their attorneys rendered ineffective assistance.

  1. Father’s Claim

¶98      Father asserts that his attorney rendered constitutionally ineffective assistance by failing to object to certain testimony, offered by the State’s witnesses during the termination trial, that Father characterizes as “improper bolstering evidence.” Father points to three statements that he believes amounted to improper bolstering of the children’s accounts of things that happened in the family home. First, he points to Therapist’s statements that Chloe was “not exaggerating her symptoms or faking how she was feeling” when reporting suicidal ideations and seeking medication and that she was being “pretty honest” in her descriptions, as well as to Therapist’s similar statement that the threats of suicide that Chloe and Felicity had made were not “fabricated” and were not “attention getters.” Second, he complains about a different therapist’s testimony that “there was never anything that [Noah] or [Hannah] told [her] relating to their experiences” at home “that would lead [her] to believe they were being dishonest.” Finally, Father identifies Branch President’s testimony that, during his communication with Chloe, Felicity, and Hannah in the August 2018 meeting, he had no concerns that “the girls were making these things up.”

¶99      Father asserts that these statements were inadmissible and that a reasonable attorney would have objected to these statements in an effort to keep them out. He further asserts that, given the importance of the children’s credibility to the issues before the court, the admission of these statements was ultimately prejudicial to him and led the court to believe the children’s accounts over his own.

¶100 We have our doubts about whether a reasonable attorney would have objected to these statements, given the importance of many of them to therapeutic diagnosis and treatment. But even assuming, for the purposes of argument, that Father’s attorney performed deficiently by not objecting to these statements, the admission of these statements did not prejudice Father on the specific facts of this case. To establish prejudice, Father must do more than “show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Samora, 2023 UT 5, ¶ 22, 529 P.3d 330 (quotation simplified). He bears the burden of demonstrating “that the decision reached would reasonably likely have been different absent trial counsel’s alleged errors.” Id. (quotation simplified). Father cannot meet that burden here.

¶101 By the time the termination trial rolled around, the court had already conducted numerous hearings in this case; most notably, it had held a five-day adjudication trial in which it had heard from the children and from various therapists and caseworkers, and it had already entered extensive findings and conclusions. In particular, as noted above, the court had already engaged in the process of determining whether Chloe and Felicity had felt genuine suicidal ideations, and concluded that they had; likewise, the court had already engaged in the process of determining whether Father had emotionally abused the children and concluded that he had. Given that the court had already made these findings, which were not substantively appealed, we cannot conclude that there is any reasonable likelihood that—absent the challenged statements—the court would, at the termination trial, have changed its entire outlook on the events in the home and made antipodally different findings than the ones it had already made at the adjudication trial.

¶102 Under these circumstances, Father cannot demonstrate that he was prejudiced by any deficient performance on the part of his attorney. Accordingly, his ineffective assistance of counsel claim necessarily fails.

  1. Mother’s Claim

¶103 Mother asserts that her attorney rendered constitutionally ineffective assistance by failing to object to the terms of Mother’s Plan and to “the State’s failure to provide the recommended services,” and by not requesting a “modified service plan” better tailored to Mother’s needs. According to Mother, “[r]easonable counsel would have understood the importance of the service plan and the services recommended by it,” and she maintains that, if she had received the benefit of a modified plan, there is a “reasonable likelihood that the court would not have determined that Mother had failed to complete the services.”

¶104 During the termination trial, the psychologist who evaluated Mother testified that Mother has dependent personality disorder, obsessive-compulsive personality disorder, and dementia, and that Mother might also suffer from aphasia but would need additional testing for that diagnosis to be confirmed. The psychologist opined that someone with Mother’s conditions would likely experience some struggles in daily life and may need “assistance and accommodations.” At the time, Mother’s attorney did not object to Mother’s Plan or assert that it should include any additional services to accommodate these diagnoses.

¶105 Now, however, Mother asserts that her attorney should have objected and should have requested that Mother’s Plan include additional services intended to assist Mother with these diagnoses and conditions. But here on appeal, Mother does not identify—let alone meaningfully discuss—any specific services she now wishes counsel would have requested, and she has therefore failed to demonstrate that she was prejudiced by counsel’s failure to make a request. Without identifying any specific services she would have liked to have received, it is impossible for her to show that such services would have been reasonably likely to have made a difference here, especially in the face of the established facts: that Mother was steadfast in her loyalty to Father, that she at all times refused to acknowledge any responsibility for the situation, and that she failed to undertake efforts to remedy the circumstances that caused the children to be in an out-of-home placement.

¶106 Like Father, Mother has not borne her burden of demonstrating that she was prejudiced by any deficient performance on the part of her attorney. Accordingly, her ineffective assistance of counsel claim likewise fails.

III. Challenges to the Juvenile Court’s Factual Findings

¶107 Next, we address Father’s assertion that a handful of the juvenile court’s factual findings were clearly erroneous and unsupported by the evidence presented at the termination trial. Father identifies four such findings; we discuss each of them, in turn, and conclude that none of them are problematic.

¶108 First, Father challenges the court’s finding that Chloe “spoke about suicidal thoughts while she lived at home.” This finding is amply supported by the evidence presented at the termination trial. Chloe testified, on direct, that she had told Father that she was “suicidal,” and that he responded by telling her that if she killed herself she would “go to hell.” On cross-examination, she explained that she had told Father that, when he treats her “like crap,” it makes her “feel like [she] just want[s] to commit suicide.” She did acknowledge that she made the comment in a kind of in-passing way, and that “it wasn’t like [she] sat [Father] down and said, ‘Dad this is a serious thing. I’m seriously considering [suicide].’” But this testimony is more than enough to support a finding that Chloe “spoke about suicidal thoughts while she lived at home.”

¶109 Moreover, the court had already found, in the adjudication trial, that Chloe’s suicidal ideations were genuine. In these earlier proceedings, the court had already learned that Parents had been informed of Chloe’s feelings well before the children were removed from the home and that they had downplayed any concerns, calling Chloe a “drama queen” and indicating that they did not believe her. Under these circumstances, ample evidence supported the court’s finding that Chloe spoke about her suicidal ideations while still living in Parents’ home.

¶110 Second, Father challenges the court’s characterization that Brother-in-Law testified that the children attended post-removal visits with Father “because it [was] what they [were] supposed to do and [they] [didn’t] engage very well.” Father asserts that the court’s characterization of Brother-in-Law’s testimony is inaccurate, and he points to a different statement Brother-in-Law made indicating that the children did not like the visits because “it interrupt[ed] their schedule.” While it’s true that Brother-in-Law said that the visits interrupted the children’s schedule, the record also shows that he testified that the children were “not very engaged” during visits but “[t]hey underst[ood] that’s what they [were] supposed to do, and so they [attended], begrudgingly sometimes, but they [were] there.” We fail to see how the juvenile court’s omission of Brother-in-Law’s additional statement that the visits interrupted the children’s schedule somehow renders the court’s finding erroneous.

¶111 Third, Father challenges the court’s statement that Noah testified that he would not feel “safe” at home. Father argues that this statement is erroneous because, as he sees it, Noah later “retracted that statement” and testified that he “didn’t mean to say safe.” Father then directs us to the portion of Noah’s testimony he believes supports his position. At this point in his testimony, Noah was being asked about the circumstances surrounding Oldest Sister’s departure from Parents’ home. He was specifically asked what he meant by his statement that she left because it “wasn’t safe.” Noah then clarified that he “probably didn’t mean to say safe” and that what he meant to convey was that Oldest Sister had gone through similar experiences to his own in living with Parents and that was the reason she left. But Noah’s statement that he did not mean to say that Oldest Sister left because it was not safe is not a retraction of his earlier statement that it was his personal belief that Parents’ house “wasn’t a safe environment.” Father mischaracterizes the record on this point and has fallen far short of persuading us that the court’s finding on this issue was clearly erroneous.

¶112 Finally, Father challenges the court’s finding that Brother-in-Law testified that the children “stopped hoarding food in their bedrooms.” Father argues that the actual testimony was about “hiding” food—not “hoarding” food—and asserts that there was no evidence that the children were malnourished or underfed while in Father’s care. We do not see a significant difference, in this context, between “hiding” food and “hoarding” food—however characterized, there is no question that the children secreted food in their bedrooms; Brother-in-Law explained that the children were “afraid to ask for more food” so they would take extra snacks to their bedrooms and “store” the food for later. Under these circumstances, we do not consider the court’s characterization of the evidence to have been clearly erroneous.

¶113 Accordingly, we reject each of Father’s challenges to the juvenile court’s factual findings.

  1. Best Interest/Strictly Necessary

¶114 Finally, we address Parents’ various challenges to the court’s conclusions that termination of their rights was strictly necessary to promote the best interest of Hannah and Noah. Both Parents raise a direct challenge to the substance of the court’s decision. In addition, Mother raises additional issues regarding the court’s handling of the GAL’s rule 59 motion. We first discuss Father’s substantive challenge, and then separately discuss Mother’s two arguments.

  1. Father’s Claim

¶115 Before the rights of any parent are terminated, the party seeking termination must establish (1) that “at least one of the enumerated statutory grounds for termination [is] present” and (2) that the “termination of parental rights [is] in the best interest of the affected children.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). Parents do not challenge the juvenile court’s determination that sufficient statutory grounds for termination are present, but they do challenge the court’s conclusion that termination of their rights is in the children’s best interest.

¶116 The best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of the circumstances” of a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (“The best-interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” (quotation simplified)).

¶117 Our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Utah Code § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the best-interest inquiry that comprises the second part of the termination test. See id. ¶ 76 (“[A]s part of [the best-interest] inquiry, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”). And our supreme court has noted that

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶118 In this case, the court seriously considered one non-termination option: imposing a permanent custody and guardianship arrangement in favor of Oldest Sister and Brother-in-Law. However, for various reasons, the court concluded that this option was not in the children’s best interest, and therefore it ordered termination of Parents’ rights. Parents each challenge the court’s conclusion in this regard.

¶119 With regard to Father, the court stated that it did “not find this alternative [of permanent custody and guardianship] to be in the children’s best interest,” and it offered “[a] couple of examples” to “illustrate the basis for this decision.” First, the court pointed to both Psychiatrist and Branch President, and noted that they had each found Father’s behavior to be so aberrant that they had taken action they’d never before taken: they sent letters to DCFS or to the court indicating their belief that Father was a danger to the children. Second, the court raised a concern about Father retaining residual parental rights, noting that, under a permanent custody and guardianship arrangement, Father “would still be in the orbit of” Hannah and Noah and could “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.”

¶120 Father challenges the court’s best-interest determination, and he makes two arguments, one categorical and one fact-specific. First, Father asserts that parental rights can never be terminated where children are in a kinship placement, as these children are here with Oldest Sister. We reject this position. No Utah statute mandates this position, and we have never so held. See In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993 (“We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights.”), cert. granted, 525 P.3d 1279 (Utah 2023). To be sure, “[i]f there exists a completely appropriate kinship placement through which the family can remain intact, the ‘strictly necessary’ showing becomes significantly harder to make.” Id. But such a showing is not impossible; indeed, staking out the categorical position Father advocates makes no sense in this context. It does not take much imagination to think of situations in which a parent’s relationship with a child is so harmful and abusive that it is strictly necessary, if the child’s best interest is to be promoted, to permanently sever that relationship, regardless of whether the child is placed with a relative. We therefore reject Father’s assertion that a parent’s rights can never be terminated if the children are placed with a relative.

¶121 Second, Father takes issue with the court’s residual rights concern. Here, Father points out that, in a permanent custody and guardianship situation, he would retain only four residual rights and duties: “(i) the responsibility for support; (ii) the right to consent to adoption; (iii) the right to determine the child’s religious affiliation; and (iv) the right to reasonable parent-time unless restricted by the court.” See Utah Code § 80-1-102(70)(a). Because the first of these is a duty and the last of these can be restricted by the court, Father asserts that we need be concerned only with the second and the third: Father’s right to consent to adoption and his right to determine the children’s religious affiliation. Father asserts that his residual rights would therefore not allow him to “assert his will” with regard to “basic medical and otherwise personal decisions,” as the juvenile court stated.

¶122 We acknowledge Father’s point, and we note our own recently expressed concern that juvenile courts may, in many cases, be overly concerned about parents retaining residual rights where permanent custody and guardianship arrangements are imposed. See, e.g.In re A.H., 2022 UT App 114, ¶ 55 (questioning “whether—in many cases . . . —a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it”); In re D.S., 2023 UT App 98, ¶¶ 23–24 (explaining why that case was “not one of those cases” in which “fear of a parent’s residual rights might reasonably counsel in favor of terminating” a parent’s rights).

¶123 But we also note, again, that we review best-interest determinations “deferentially,” and we overturn them only if the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re D.S., 2023 UT App 98, ¶ 15 (quotation simplified). On a couple of recent occasions, we have reversed juvenile courts’ best-interest/strictly-necessary decisions, even applying this deferential standard, because in our view “the evidence presented at trial did not constitute clear and convincing evidence that termination of [the parents’ rights] would be in the best interest” of the affected children. See In re A.H., 2022 UT App 114, ¶ 38; see also In re D.S., 2023 UT App 98, ¶ 31 (stating that, “[i]n the end, the facts of this case simply don’t add up to strict necessity”). But in other situations—like this one, for the reasons we discuss—the facts as presented at trial lend themselves to more than one possible conclusion. In such cases, our somewhat deferential standard of review will lead us to affirm, because either result will be supported by the facts of the case and will be within the discretion of the court.

¶124 In this vein, we draw an illustrative contrast between the facts of this case and the facts of In re D.S. In that case, the father was incarcerated, and he conceded that he was unable to care for his children and that therefore statutory grounds existed for termination of his parental rights. See 2023 UT App 98, ¶ 13. But he nevertheless resisted termination, asserting that it was not in the children’s best interest for that to occur. Id. ¶ 15. He had maintained regular virtual visits with the children throughout his incarceration—visits that had gone fairly well, although the children sometimes were bored during the visits— and he expressed a desire to “have a stronger relationship with” his children upon his release. Id. ¶ 11. The children were placed with the father’s own mother, who wanted to adopt them. Id. ¶¶ 9, 14. The juvenile court ordered the father’s rights terminated because it viewed adoption by the paternal grandmother as offering “stability,” and because it believed that adoption was necessary to “protect” the children “from [the father’s] desire to have ongoing and frequent visitation” after his release. Id. ¶¶ 13– 14.

¶125 We reversed the termination order. We noted that “there is no indication that [the father’s] continuing relationship with [the children] is harmful to them, rather than merely perhaps inconvenient.” Id. ¶ 24. In particular, we noted that there were no allegations of abuse or neglect regarding the father, and that the children had been “found only dependent—not abused or neglected—as to him.” Id. And we observed that, given “the absence of a ‘harmfulness’ component” to the father’s relationship with the children, there was “no basis for the juvenile court’s view that [the children] need ‘protections against [the father’s] commitment for increased and continued visitation.’” Id. ¶ 27. Relatedly, we noted the absence of any evidence that the father and the grandmother had “the sort of relationship where [the father] would be likely to exercise undue control over custody and care decisions in a guardianship arrangement.” Id. ¶ 32.

¶126 Finally, we placed “almost no stock in” the juvenile court’s reference to the desires of the children, for two reasons. Id. ¶ 29. First, the children were quite young—eleven and six—and the court had made no determination that they were old enough to offer a meaningful opinion as to the differences between adoption and guardianship. Id. Second, and more substantively, “the trial testimony did not support any finding on this issue more specific than that [the children]—quite understandably— wanted to remain in [their grandmother’s] care.” Id. ¶ 30. In particular, “no witness offered any testimony that could support a finding that either of [the children] actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption.” Id.

¶127 In this case, by contrast, the operative facts are quite different. First, and most importantly, there is a significant “harm” component to this case that was entirely absent in In re D.S. Here, the juvenile court found—after a lengthy adjudication trial—that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment [had] emotionally damaged the children.” Father mounted no substantive appeal from these adjudicated facts, and he agrees that we must take those facts as they are. Moreover, Father failed to take advantage of any of the services provided to him to address his abusive behavior; indeed, the court found—in findings not appealed here—that Father had “made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.” At the conclusion of the termination trial, the juvenile court therefore had every reason to believe that Father— if allowed a continuing relationship with the children—would continue his abusive behavior just as he had in the past. Under the particular circumstances of this case, the juvenile court’s concern about residual rights was entirely justified.

¶128 Second, given the emotional abuse issues present here, there is also good reason to believe that Father—if allowed to retain residual rights—would leverage the fact that he still had parental rights to attempt to exercise undue control over custody and care decisions, and would not just limit his role to consenting to adoption and any change in religious affiliation. In the past, Father had attempted to exercise his domineering ways over Oldest Sister, even once “backhand[ing]” her when, as an adult, she declined his demand to clean his house during a visit. And the incident involving Father’s attempt to interfere with Chloe’s medical appointment—even after removal—is well-documented and has already been discussed. We therefore view the court’s finding regarding Father’s propensity to interfere in custody and care decisions as entirely supported by the record here.

¶129 Finally, the court in this case had strong evidence of what the children’s individual desires were. Unlike in In re D.S., all four of the children here, by the conclusion of the trial, were at least fourteen years old, and all of them were able to articulate clear opinions about what their desired outcome was. And all of them told the court, in no uncertain terms, that they wanted to be adopted by Oldest Sister and that they did not want to have any relationship with Father.[14] As noted below, the juvenile court was to give the children’s desires in this regard “added weight.” See Utah Code § 80-3-409(15).

¶130 For all of these reasons, then, we see no reversible error in the juvenile court’s conclusion that, in this case, it was in the children’s best interest for Father’s parental rights to be terminated. Such a decision was within the discretion of the juvenile court and was supported by the record.

  1. Mother’s Arguments

¶131 With regard to Mother, the court initially declined to terminate her rights, instead imposing a permanent custody and guardianship arrangement in favor of Oldest Sister. After consideration of the GAL’s rule 59 motion, however, the court changed course and terminated Mother’s rights along with Father’s, concluding that it had failed to give the proper weight to the children’s stated wishes for adoption.

¶132 Mother challenges the court’s termination order on two grounds. First, she asserts that the court erred by allowing the GAL to submit evidence, in connection with the rule 59 motion, of certain post-trial events. Second, she mounts a substantive challenge, similar to Father’s, to the court’s conclusion that termination of her parental rights was strictly necessary to promote the children’s best interest. We discuss these two arguments in turn.

1

¶133 After oral argument on the GAL’s rule 59 motion, the court allowed the GAL to submit a “Report and Recommendation” that included an affidavit from Brother-in-Law describing events that had occurred after the termination trial. Mother believes that the court erred by considering this “new evidence” in reaching its decision to terminate Mother’s parental rights. We take Mother’s point that evidence of post-trial proceedings should ordinarily play no role in considering whether to grant a new trial. See In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (“A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial . . . .” (quotation simplified)). But even assuming, for the purposes of the argument, that the court erred by allowing the GAL to submit this evidence, any such error was harmless here because there is no indication that Brother-in-Law’s affidavit played any role in the court’s decision.

¶134 In its ruling granting the GAL’s motion, the court included an introductory paragraph informing the parties that, before making its decision, it had “review[e]d” rule 59, “the filings and arguments of the parties,” the “prior testimony from the termination trial,” and its “original findings and order.” The court made no specific mention of Brother-in-Law’s post-argument affidavit. And later in its order, when setting forth the actual basis for its decision, it explained that it was amending its initial order because “the children’s wishes or voice were not given proper weight” as mandated by governing statute. It noted again that it had reviewed its own “previous findings and conclusions” as well as “the trial testimony and exhibits,” especially the children’s testimony in which they were “direct in seeking to be adopted” by Oldest Sister. In explaining the substance of its decision, the court made no mention at all of any post-trial events or of Brother-in-Law’s affidavit, and it explained that the basis for its decision rested on entirely different grounds.

¶135 Under these circumstances, any error on the part of the court in allowing the submission of evidence of post-trial events did not affect the court’s grant of the GAL’s rule 59 motion. We therefore see no basis for reversal of the court’s rule 59 decision in the arguably improper submission of Brother-in-Law’s affidavit. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”).

2

¶136 Next, Mother challenges the substance of the court’s decision to terminate her parental rights. Here, we reach the same conclusion we reached in considering Father’s similar challenge: while the juvenile court could potentially have imposed a permanent custody and guardianship arrangement on these facts, we perceive no reversible error in its conclusion that termination of Mother’s rights was strictly necessary to promote the children’s best interest.

¶137 As an initial matter, the court correctly interpreted the statutes governing a child’s stated desires. Under Utah law, “if the minor desires an opportunity to address the juvenile court or testify,” the court “shall . . . allow the minor” to do so. Utah Code § 80-3-108(4)(a)(ii). Moreover, when “determining whether termination is in the best interest of the child,” the court should consider the relevant factors “from the child’s point of view.” Id. § 80-4-104(12)(b). The juvenile court heard from Hannah and Noah, and thereafter correctly noted that they “were straightforward in stating that they wished to be adopted by” Oldest Sister and Brother-in-Law. The court also noted that, when a minor is fourteen years old or older, “the juvenile court shall give the minor’s wishes added weight” and, if the court’s decision “differs from a minor’s express wishes,” then the court must “make findings explaining” its decision. Id. § 80-3-409(15). At the time the court issued its ruling, Hannah was seventeen and Noah was fourteen; the statute thus required the court to give their wishes “added weight.” And that is exactly what the court did. After further analyzing “the testimony and evidence from the trial on the termination petition, with emphasis on the children’s testimony, and with further review” of the relevant statutes, the court was persuaded that its previous order should be amended and that Mother’s parental rights should be terminated. We perceive no error in the court’s procedure in this regard.

¶138 Mother further challenges the court’s substantive decision, and we acknowledge that, with regard to her, certain factors weigh perhaps more in her favor—or, at least, not as strongly against her—than they do with regard to Father. Her relationship with the children was less actively harmful than Father’s, and there is little if any evidence that she tended to attempt to manipulate her relationship with Oldest Sister. We therefore understand, at some level, the juvenile court’s initial inclination to keep her relationship with the children intact, even while terminating Father’s.

¶139 But ultimately, we agree with the State and the GAL that sufficient evidence exists in this record to support the juvenile court’s reconsidered determination to terminate Mother’s rights as well. There was evidence supporting the conclusion that Mother’s relationship with the children was harmful, even if to a lesser extent than Father’s. And Mother adamantly elected to remain in a relationship with Father, an adjudicated emotional abuser who refused to take steps to remedy the situation. We have previously noted that juvenile courts “have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” See In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529; see also In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (upholding a juvenile court’s finding that termination of a mother’s parental rights was in the children’s best interest where the mother continued to foster a relationship with the children’s abusive father, “had no intention of separating from” him, and “continue[d] to deny that any abuse occurred”), cert. denied, 63 P.3d 104 (Utah 2002).

¶140 And the children were adamant that they wanted to be adopted and that they wanted no continuing relationship with Parents, a consideration to which the court was statutorily obligated to give “added weight.” See Utah Code § 80-3-409(15). Mother appears to recognize that the juvenile court’s decision came down to a “weighing of factors,” asserting in her appellate brief that the court “performed an inappropriate weighing of factors.” While a different judge might have weighed the factors differently and opted to keep Mother’s relationship with the children intact, we cannot say that the juvenile court, on this record, committed reversible error by exercising its discretion in the opposite direction.

CONCLUSION

¶141 In sum, Parents have not carried their burden of demonstrating any violation of their constitutional rights. Parents have also not established that either of their trial attorneys provided ineffective assistance. Additionally, we perceive no clear error in any of the challenged factual findings. The juvenile court’s determination that termination of Parents’ parental rights was strictly necessary to advance the children’s best interest was supported by the record, and we perceive no reversible error in the court’s grant of the GAL’s rule 59 motion.

¶142 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Hannah and Noah are pseudonyms, which we elect to employ here to avoid continued and potentially confusing repetition of similar-sounding initials.

[2] In cases like this one, where parties are appealing the determination made following a termination trial, “we recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[3] Chloe and Felicity are also pseudonyms.

[4] All four children waived the clergy testimonial privilege to allow Branch President to testify at this and other proceedings throughout this matter.

[5] A second therapist also recalled this incident, later testifying that Father became “aggressive” and was yelling at Therapist about DCFS “framing his family” and how there was a “large conspiracy . . . brought on through DCFS” and “the State of Utah.”

[6] During later testimony, Father testified about the group therapy sessions and, specifically, about the issues he had with Therapist, and he attempted to explain his perception that Therapist did not have “the same values” as Father. When specifically asked whether he wanted a therapist who was a member of The Church of Jesus Christ of Latter-day Saints (LDS), Father stated that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.”

[7] Mother later asked the court to “set aside” her rule 34(e) plea and requested “that a new trial be ordered to address the allegations” in the State’s petition. See Utah R. Juv. P. 34(e). The basis for this request was that Mother claimed “she was not certain of what a [r]ule 34(e) proceeding involved and the resulting consequences.” The court denied Mother’s request, stating that Mother had “affirmatively waived her right to a trial” and that the court had “confirmed that she understood she was waiving her right to trial.” The court had even gone a step further and “had a colloquy specifically with [Mother] and her counsel wherein she indicated she understood” the implications of proceeding under rule 34(e) “and the resulting findings that would be made as a result of that course of action.”

[8] At the adjudication stage, Mother—the parent who was found to have neglected (as opposed to abused) the children—did not attempt to invoke this religious-based statutory exception. Nor does she invoke it here on appeal. Accordingly, as far as we are aware, this exception is not at issue in this case.

[9] 9. As noted, Parents do not challenge the determination that statutory grounds for termination of their parental rights were present in this case. But Parents do assert, in their briefs, that the State interfered with their “right to make value-based decisions regarding the upbringing” of the children. This argument is not independently developed, and—especially in light of Father’s attorney’s concession at oral argument—we do not interpret it as a frontal attack on the juvenile court’s adjudication findings. However, to the extent it is intended as such, we reject that challenge not only because it is inadequately briefed but also because any challenge to the adjudication findings needed to have been made in an appeal from the adjudication order. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768.

[10] In addition to these two arguments, Mother complains—in passing, during the “constitutional” section of her brief—that the court improperly “utiliz[ed]” her “continued association with Father as evidence that she had failed to make adequate effort to adjust her conduct to substantially correct the circumstances that led to” the children’s removal. But Mother does not develop this argument; in particular, she makes no attempt to explain how this argument might have constitutional dimension. As noted, infra ¶ 139, it is not improper for a juvenile court to take into account, in making a termination decision, the fact that a parent insists on continuing a relationship with an abusive person.

[11] The rule also seemingly had little to no impact on Mother’s therapy sessions with the children. Mother testified that she only remembered being told about the children’s rules during the first two therapy sessions and, from her recollection, the children “brought all those things up” anyway.

[12] We also wonder whether there was any state action involved here at all, given that the rule in question was envisioned and requested by the children themselves. See In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (stating that the constitution protects “against state action,” not against “the actions of private parties”). But this issue was not briefed by the parties, and we therefore offer no opinion on the subject.

[13] While Parents couch their claim, at times, in the language of “reasonable efforts,” we note that their claim is not a traditional challenge to a juvenile court’s reasonable efforts determination. In particular, Parents do not directly argue that either of the two things they challenge—the requirement that they participate in family therapy with Therapist or the no-talking-about-religion rule—were not part of a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified).

[14] In this case, Parents make no argument that any of the children were too young, or were for any other reason incompetent, to offer trial testimony about their desires regarding placement, adoption, and their ongoing relationship with Parents.

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Doing What’s Best for Children by Refusing to Hear From Them on the Subject (And Other Nonsense).

Recently an attorney posed a question on a forum for fellow Utah family law attorneys. The question involved how to find out what the children’s experiences have been with one of their parents (this parent was dealing with some personal demons) and what kind of contact they should have with that parent.

I responded on the forum that if this isn’t a scenario in which both the commissioner and the judge should be interviewing the children themselves, so that those who hold the fates of these children in their hands have the best possible idea what is going through these children’s minds at this time, what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, then there is never an appropriate time for the court to interview children.

Who could gainsay that?

Many tried (and failed).

One attorney who responded to my suggestion commented that this would be the worst time for a judge or commissioner to interview the children but did not explain why. This attorney claimed that a private guardian ad litem (PGAL) should be appointed for, and to interview the children, instead. I asked for an explanation, and further commented by asking what ostensibly makes judges and commissioners so innately bad at interviewing children, and what makes PGALs innately so good at it? I don’t know where the myth of the angelic, “child whisperer” PGAL and the demonic, “couldn’t interview a child effectively if his/her life depended on it” judge dichotomy came from, but it’s nonsense.

Another attorney (like many who comment on this subject) commented that children should never be interviewed or even “exposed to the legal system unless absolutely necessary” without identifying a scenario in which it would be “absolutely necessary”. This attorney claimed that because minor children’s brains are developing that being interviewed by a judge or commissioner  “is incredibly damaging to the child.” In response to that comment I asked, “Where’s the evidence?”

The response I got was similar to what everyone says to me in response to that same question:

  • “every single child development book ever created, academic case studies, nonprofits that specialize in it, etc.” advises against judges or lawyers interviewing children.

o   This is false (which should come as no surprise when any speaks in those kinds of absolute terms), but it’s widely believed (or asserted as believed) in the family law profession.

  • “Commissioners and judges are not specifically educated in this area of law as those who practice it day are.”

o   But that argument erroneously presumes

  • that unless a judge, commissioner, or lawyer is “specifically educated” in how to talk to children about what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, that judge, commissioner, or lawyer will inexorably make a mess of interviewing the child; and
  • that those who are (or are “certified” as) “specifically educated” in how to talk to children are incapable of being incompetent child interviewers.
  • When I responded with, “Well, if it’s so obvious and the research so voluminous and overwhelming, please cite it,” I got this in response: “You can do the research yourself.”

The legal system needs to stop believing that which is untested in the name of “protecting children.” It was widely accepted as fact in America that tomatoes were poisonous to humans. It was not until Robert Gibbon Johnson (no relation to me) ate a tomato on the courthouse steps of Salem, New Jersey in 1820 that he proved otherwise. Dispelling that myth has been a culinary and economical boon to the entire world.

I recently deposed a 14-year-old child in a parent time dispute case. She was not only willing to testify but was grateful for the opportunity to have her voice heard and her viewpoint considered. She was a particularly compelling and credible witness. The evidence she provided could not have come from any other source. After her deposition the case was resolved in a week.

The notion that any child testifying in any child custody or parent-time dispute case does terrible damage to any and every child is simply not true. I know this because I have deposed children to the benefit of child and truth seeking alike.

Blanket prohibitions on child testimony (on the grounds that they are nothing but harmful to all children) are not only false, they are also contrary to fundamental concepts of fact finding and subserving the best interest of the child.

I know that eliciting child testimony is not harmful to all children because I have real world data to the contrary. And not just someone else’s claims, but my own experience.

It has, unfortunately, become an article of faith in Utah family law practice that child testimony does more harm than good. That has not been my experience. I am one of the few attorneys in Utah who has that experience. It is therefore hard for me to give unverified claims the same weight as my own experience. I would be lying if I asserted that child testimony inexorably and/or irreparably harms most (let alone all) children. Blanket prohibitions on child testimony are antithetical to fundamental principles of our legal system, i.e., diligent investigation, careful, impartial analysis, real respect for children’s rights and best interests, and honest judgment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Blanket prohibitions on child testimony in custody and parent-time disputes are irrational and irresponsible

Thomas Sowell said (in a discussion of politics and governance), “There are no solutions. There are only tradeoffs, and whatever you do to deal with one of man’s flaws it creates another problem, but you try to get the best solution you can get.”

So often in human experience the response to a problem comes down to compromise. We must be careful not to overstate the principle, of course. We need to be moral. We need to be honest and fair. Compromise comes up not in compromising our values for the sake of expediency, but when reasonable minds can differ. When people are too rigid in their positions, quite often everyone loses. Nothing gets done. One of the things that annoys me about the lack of understanding this principle in family law is when attorneys, courts, or advocates with certain agendas take rigid positions that depends upon ignoring the reasonable arguments of the other side for their rigid positions to have supposed unassailable merit.

Take my efforts to allow child testimony in child custody and parent time dispute cases.

There are those who believe that involving the children in the litigation process by asking them questions and seeking their input through testimony about what they’ve experienced, how they feel about it, and what they may desire by way of custody and parent time schedules can do nothing but harm the children. Those against child testimony in any form offer several arguments:

  • Testifying causes children to feel as though their loyalties are hopelessly split between the two parents they love. Children may feel as though they must break the heart of one parent in pleasing the other parent.
  • It causes children to fear reprisals and retaliation by parents who may be angered or upset by children’s testimony.
  • It exposes children to matters they are unprepared and unqualified to deal with, to issues better left to adults to resolve.
  • Children are generally incompetent and/or incredible witnesses.

There are some fair points there. But when people focus on these points to the exclusion of all other fair and reasonable points to the contrary, they don’t do their cause any favors. Ignoring rational counterarguments or rejecting them out of hand rouses skepticism as to just how strong and how broadly applicable the argument really is. An argument that denies any defects is usually proof that defects exist. Acknowledging the flaws and weaknesses in one’s position helps to reveal the extent of its strengths and applicability.

Granted:

  • Some (not all) children cannot testify without it doing them serious psychological and or emotional damage.
  • Compelling some (not all) children to testify might expose them to heinous reprisals from a wicked parent (although muzzling a child to “protect” him/her from a retaliatory parent only rewards—and thus encourages—bad behavior on the part of parents). Otherwise stated, sometimes the harm the child might suffer for his/her testimony outweigh the benefits of the child’s testimony to the court.
  • Not all children are competent and/or credible witnesses due to their age leaving them too young to understand the difference between right and wrong, truth and falsity. They could be mentally disabled or mentally ill to the point that they cannot perceive reality accurately. Or they could simply be too immature to know what’s good for them.

But we must also acknowledge that:

  • some children have no cause to fear retaliation from either parent, and so they don’t fear either parent.

–  some children are not only willing to share their experiences, observations, feelings, opinions, and desires—if called upon to do so, but want to do so. They wish to have a voice in the child custody and parent time analysis and decisions. Children who are sufficiently intelligent and mature to make intelligent and mature contributions to the evidence should be heard. The court needs to consider that evidence in making the child custody and parent-time awards.

  • competent, credible child witnesses are often the best, sometimes the only, witnesses to certain facts that bear crucially upon the child custody and parent-time award decisions.
  • children are, after all, the greatest stakeholders in such decisions. They have the most to gain or lose by the quality of the decision.

Thus, to ignore (or even refuse) such evidence from a willing, competent, credible child witness is, in my opinion, malfeasance on the part of a judge deciding child custody and parent-time matters.

It is easy to “prevent” what harm child testimony may cause some children by prohibiting all child testimony, but at what cost? Such extreme measures deprive some children (and the courts deciding their custody and parent-time fates) of the benefits their testimony could yield. Blanket prohibitions on child testimony in all cases are no better than mandating children testify in all cases. The matter of whether a child testifies ought to be decided on a case by case basis, and competent, credible child witnesses should testify if called to testify, unless there is clear and convincing evidence that the testimony’s probative value is substantially outweighed by a clearly and particularly articulable danger (not a mere, generalized claim of risk—every venture necessarily includes some risk) of irreparable harm to the child, were the child to testify.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What are the child custody factors that judges consider?

What are the child custody factors that judges consider when determining what’s in a child’s best interest in custody disputes according to Utah’s family law statutes?

The main factors are found in Utah Code § 30-3-10 (and the main factors of § 30-3-10 itself are highlighted below in red text, but you should read the entire applicable code section for all factors):

30-3-10.  Custody of a child — Custody factors.

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

      (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

      (b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

             (i) physical needs;

             (ii) emotional needs;

             (iii) educational needs;

             (iv) medical needs; and

             (v) any special needs;

      (c) the parent’s capacity and willingness to function as a parent, including:

             (i) parenting skills;

             (ii) co-parenting skills, including:

     (A) ability to appropriately communicate with the other parent;

     (B) ability to encourage the sharing of love and affection; and

     (C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

            (iii) ability to provide personal care rather than surrogate care;

     (d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

     (e) the emotional stability of the parent;

     (f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

     (g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

     (h) the parent’s reasons for having relinquished custody or parent-time in the past;

     (i) duration and depth of desire for custody or parent-time;

     (j) the parent’s religious compatibility with the child;

     (k) the parent’s financial responsibility;

     (l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

     (m) who has been the primary caretaker of the child;

     (n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

     (o) the relative benefit of keeping siblings together;

     (p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

     (q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

     (r) any other factor the court finds relevant.

(3) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

     (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse involving the child, a parent, or a household member of the parent;

     (b) special physical or mental needs of a parent or child, making joint legal custody unreasonable;

     (c) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

     (d) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

*****

(6)

     (a) Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

     (b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

         (i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

         (ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

*****

(7) This section does not establish a preference for either parent solely because of the gender of the parent.

(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

*****

(10) In considering the past conduct and demonstrated moral standards of each party under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

     (a) consider or treat a parent’s lawful possession or use of cannabis in a medicinal dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in accordance with Title 4, Chapter 41a, Cannabis Production Establishments and PharmaciesTitle 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession or use of any prescribed controlled substance; or

     (b) discriminate against a parent because of the parent’s status as a:

         (i) cannabis production establishment agent, as that term is defined in Section 4-41a-102;

         (ii) medical cannabis pharmacy agent, as that term is defined in Section 26B-4-201;

         (iii) medical cannabis courier agent, as that term is defined in Section 26B-4-201; or

         (iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis.

Just how does a court consider the child custody factors? The recent case of Lamb v. Lamb (2024 UT App 16) provides a concise explanation:

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

But note that § 30-3-10 does not constitute the only list of factors the court can consider in making its child custody and parent-time award decisions.

Equal physical custody factors

30-3-35.2.  Equal parent-time schedule.

(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

         (i) the equal parent-time schedule is in the child’s best interest;

         (ii) each parent has been actively involved in the child’s life; and

         (iii) each parent can effectively facilitate the equal parent-time schedule.

     (b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:

         (i) each parent’s demonstrated responsibility in caring for the child;

         (ii) each parent’s involvement in child care;

         (iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

         (iv) each parent’s assistance with the child’s homework;

         (v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

         (vi) each parent’s bond with the child; and

         (vii) any other factor the court considers relevant.

     (c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

         (i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

         (ii) each parent’s ability to assist with the child’s after school care;

         (iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);

         (iv) the flexibility of each parent’s employment or other schedule;

         (v) each parent’s ability to provide appropriate playtime with the child;

         (vi) each parent’s history and ability to implement a flexible schedule for the child;

         (vii) physical facilities of each parent’s residence; and

         (viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

     (b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

     (c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

     (d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

     (e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

         (ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

         (i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;

         (ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and

         (iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

     (b) The child exchange shall take place:

         (i) at the time the child’s school begins; or

         (ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

     (b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

         (i) order the holiday schedule described in Section 30-3-35; and

         (ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

     (b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

         (ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.

     (c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

     (d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

Parent-time factors

30-3-32.  Parent-time — Definitions — Considerations for parent-time — Relocation.

(1) As used in Sections 30-3-32 through 30-3-37:

     (a) “Child” means the child of divorcing, separating, or adjudicated parents.

     (b) “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.

     (c) “Surrogate care” means care by any individual other than the parent of the child.

     (d) “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.

     (e) “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.

(2) (a) A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.

     (b) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

         (i) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;

         (ii) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and

         (iii) it is in the best interests of the child to have both parents actively involved in parenting the child.

(3) An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.

(4) If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.

30-3-33.  Advisory guidelines.

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(1) Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.

(2) The parent-time schedule shall be used to maximize the continuity and stability of the child’s life.

(3) Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.

(4) The responsibility for the pick up, delivery, and return of the child shall be determined by the court when the parent-time order is entered, and may be changed at any time a subsequent modification is made to the parent-time order.

(5) If the noncustodial parent will be providing transportation, the custodial parent shall have the child ready for parent-time at the time the child is to be picked up and shall be present at the custodial home or shall make reasonable alternate arrangements to receive the child at the time the child is returned.

(6) If the custodial parent will be transporting the child, the noncustodial parent shall be at the appointed place at the time the noncustodial parent is to receive the child, and have the child ready to be picked up at the appointed time and place, or have made reasonable alternate arrangements for the custodial parent to pick up the child.

(7) Regular school hours may not be interrupted for a school-age child for the exercise of parent-time by either parent.

(8) The court may make alterations in the parent-time schedule to reasonably accommodate the work schedule of both parents and may increase the parent-time allowed to the noncustodial parent but may not diminish the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.

(9) The court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time.

(10) Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.

(11) The custodial parent shall notify the noncustodial parent within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and the noncustodial parent shall be entitled to attend and participate fully.

(12) The noncustodial parent shall have access directly to all school reports including preschool and daycare reports and medical records and shall be notified immediately by the custodial parent in the event of a medical emergency.

(13) Each parent shall provide the other with the parent’s current address and telephone number, email address, and other virtual parent-time access information within 24 hours of any change.

(14) Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration:

     (a) the best interests of the child;

     (b) each parent’s ability to handle any additional expenses for virtual parent-time; and

     (c) any other factors the court considers material.

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

(16) Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.

(17) Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday.

(18) If the child is on a different parent-time schedule than a sibling, based on Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for parent-time with all the minor children so that parent-time is uniform between school aged and non-school aged children, is appropriate.

(19) When one or both parents are servicemembers or contemplating joining a uniformed service, the parents should resolve issues of custodial responsibility in the event of deployment as soon as practicable through reaching a voluntary agreement pursuant to Section 78B-20-201 or through court order obtained pursuant to Section 30-3-10. Servicemembers shall ensure their family care plan reflects orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents Custody, Parent-time, and Visitation Act.

30-3-34.  Parent-time — Best interests — Rebuttable presumption.

(1) If the parties are unable to agree on a parent-time schedule, the court may:

     (a) establish a parent-time schedule; or

     (b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(3) A court may consider the following when ordering a parent-time schedule:

     (a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

     (b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

     (c) the distance between the residency of the child and the noncustodial parent;

     (d) a credible allegation of child abuse has been made;

     (e) the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

     (f) the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

     (g) the preference of the child if the court determines the child is of sufficient maturity;

     (h) the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

     (i) shared interests between the child and the noncustodial parent;

     (j) the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

     (k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

     (l) a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

     (m) the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

     (n) the parent-time schedule of siblings;

     (o) the lack of reasonable alternatives to the needs of a nursing child; and

     (p) any other criteria the court determines relevant to the best interests of the child.

(4) The court shall enter the reasons underlying the court’s order for parent-time that:

     (a) incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or

     (b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

(6) Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”

Today’s blog post reviews House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”. It proposes changes to Utah Code § 80-2-602, the law governing when members of the clergy are and are not required to report child abuse.

Currently, Utah Code § 80-2-602(1) provides, in pertinent part regarding clergy and child abuse reporting:

“[I]f a person . . . has reason to believe that a child is, or has been, the subject of abuse or neglect, or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect, the person shall immediately report the suspected abuse or neglect to the division or to the nearest peace officer or law enforcement agency.” (§ 80-2-602(1)

So far, so good.

(3) Subject to Subsection (4), the reporting requirement described in Subsection (1) does not apply to:

(a) a member of the clergy, with regard to any confession made to the member of the clergy while functioning in the ministerial capacity of the member of the clergy and without the consent of the individual making the confession, if:

(i) the perpetrator made the confession directly to the member of the clergy; and

(ii) the member of the clergy is, under canon law or church doctrine or practice, bound to maintain the confidentiality of the confession[.]

*****

(4)

(a) When a member of the clergy receives information about abuse or neglect from any source other than confession of the perpetrator, the member of the clergy is required to report the information even if the member of the clergy also received information about the abuse or neglect from the confession of the perpetrator.

(b) Exemption of the reporting requirement for an individual described in Subsection (3) does not exempt the individual from any other efforts required by law to prevent further abuse or neglect by the perpetrator.

H.B. 129 would, if passed into law, include this new provision (please note that the numbers out to the side are the line numbers in H.B. 131):

58          (4) (a) Notwithstanding the exemption in Subsection (3)(a), a member of the clergy

59     may report suspected child abuse or neglect.

I have two major concerns about such a provision.

1. Confession, as they say, is good for the soul. It is. Why? Knowing that confession to clergy—and knowing that confession is and shall remain strictly confidential (private)—is often the only thing that summons a sinner’s courage to confront and admit his/her sins. The freedom to confess (to clergy) without fear of arrest or incarceration helps some who are tormented by their sins confront them. Through confession, clergy serve to help the sinner (whose sins are also often crimes) take the first step toward repentance. Take that absolute confidentiality away, and the value of confession is destroyed. Many who would have otherwise confessed will—knowing confession is no longer strictly confidential—not confess and thus not work their way to being publicly accountable. No one benefits from that.

Some well-meaning clergy might believe that taking (or even eliciting) a confession and then reporting the sinner to law enforcement is “for the sinner’s own good,” but that kind of betrayal of trust would then lead to distrusting clergy and then to avoiding and rejecting the very spiritual care we so desperately need both individually and as a society.

2. I’ve been a lawyer for a long time now (27 years, to be exact, as of the date I write this post), and while I don’t claim to know everything, I have experienced “mays” becoming “shalls”; judges and juries go from “I acknowledge that you didn’t have to report” to “I can’t believe you didn’t report!” or “Just because you weren’t required to report does not mean in this instance that you shouldn’t have; have you no decency!” I can easily foresee situations in which a clergy member keeps a confession confidential (as is his/her religious and moral duty) and then be publicly humiliated for it, sued civilly for it, and yes, even somehow convicted criminally for it (where there’s a will, there’s a way). It’s hard enough to be a clergy member as it is. It’s hard enough to encourage and inspire people to repent and better themselves. Eliminate the strictly confidential status of the confession and the essential nature of confession itself is eliminated. When it comes to reporting abuse “clergy may” turns into “clergy shall”. That would be disastrous. If clergy must rat out the sinners in their congregations, then those whom clergy could help the most will avoid and reject the clergy (see above).

To those who will say, “Have you no concern for the abuse victims?,” the answer is clear (hard to accept, perhaps, but no less clear): there is a greater interest than that of the individual victims at stake here. Confidential confession to clergy helps clergy to persuade sinners to recognize and do what is right. We are all sinners to some degree. Diluting the confidentiality of the confession will cause potential penitents to remain in the shadows.

Priest-penitent privilege: Removing it doesn’t help children | Opinion – Deseret News

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Allegations of Child Abuse vs. Allegations of Parental Alienation

Here’s a very, very short news report on the subject of when allegations of child abuse are countered with allegations of parental alienation:

 https://www.youtube.com/watch?v=44hJ8zWRrik

image.png

I welcome sincere and rational comments on this very important subject.

There are no easy answers to this question, but there is one idea that will help: interview the child (when the child is a competent witness). Even if the interview raises more questions than provides answers, inquiring with the child does more than simply make sense; to me, it’s judicial malfeasance not to inquire with the child, as the child has a greater stake in the child custody and parent-time awards than anyone else. I have yet to have the child interview (in the shamefully rare cases when a child is either interviewed by the judge or in a deposition) do the child more harm than good, and when the child is articulate and credible, the child’s testimony is usually the most (by an order of magnitude) compelling and persuasive evidence.

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A.W. v. Marelli – 2024 UT App 8 – infliction of emotional distress

A.W. v. Marelli – 2024 UT App 8

THE UTAH COURT OF APPEALS

A.W., Appellant, v.  MILLIE MARELLI, Appellee.

Opinion

No. 20220207-CA

Filed January 19, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 190902075

Michael W. Young, Alan S. Mouritsen, and

Adam Bondy, Attorneys for Appellant

Emily Adams, Freyja Johnson,

Hannah K. Leavitt-Howell, and James I. Watts,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 AW[1] alleges that when, as a teenager, she accused her stepfather of sexual abuse, her mother, Millie Marelli, maintained the abuse did not occur and told AW to never speak of it again. But speak of it AW did—to her biological father, who reported the abuse to authorities. Ultimately, AW was removed from Marelli’s home, and not long thereafter she cut off all contact with Marelli. When Marelli allegedly persisted over a number of years in making unwelcome contact, AW sued Marelli, claiming negligent and intentional infliction of emotional distress as well as negligent sexual abuse. Marelli moved for summary judgment on all claims, which the district court granted on the basis that AW failed to establish the required quantum of proof on each claim. AW appeals, and we affirm.

BACKGROUND[2]

¶2        AW alleges that in late 2008 or early 2009—when she was twelve years old—her stepfather (Stepfather) sexually abused her. When Marelli was hospitalized for several days while undergoing a medical procedure, she left AW in the care of Stepfather. According to AW, she became scared of the dark and Stepfather invited her to sleep in his bed. Once in the bed, Stepfather put his hand inside her underwear and began touching her genitals.

¶3        Shortly thereafter, AW disclosed the incident to Marelli. Marelli asked Stepfather what had happened, and he said that he awoke with his hand on AW and immediately withdrew it. He explained to AW that it was an accident and apologized. AW says Marelli and Stepfather told her the abuse never occurred and not to speak of it again. Marelli did not report the incident to authorities. Approximately one week later, AW told her father (Father) about the incident. Father immediately filed a complaint with the Division of Child and Family Services (DCFS) and sought a protective order against Stepfather. DCFS made a supported finding that Stepfather presented a credible threat to AW’s safety, but DCFS did not find evidence to support a finding that Marelli failed to protect AW. Father was eventually awarded sole legal custody of AW.

¶4        In a sworn declaration, Marelli’s neighbor (Neighbor) stated that in late 2007 or early 2008, prior to the abuse AW alleged, she informed Marelli of an incident between her young daughter and Stepfather. Neighbor explained that her daughter came home from playing at Marelli’s house with writing and pictures on her buttocks in the handwriting of an adult. When she asked her daughter about it, her daughter said that she and Stepfather were playing a game where the winner wrote on the other person. Neighbor spoke with Marelli about it, and Marelli “became defensive,” denying Stepfather had “anything to do with it.” Marelli blamed Neighbor’s daughter for it, saying she had “offered herself” to Stepfather. Neighbor said her instincts told her to stop allowing her daughter to play at Marelli’s house.

¶5        Since losing custody of AW in 2009, Marelli and AW have not seen one another outside of some initial court-ordered therapy sessions and a few brief encounters. AW claims that Marelli’s alleged “denial [of the abuse] and victim blaming behavior are significant sources of [her] psychological disorders.” Over the past decade, Marelli has continued to contact AW by sending letters, birthday gifts, and Facebook messages. AW claims she has repeatedly expressed her wishes not to have any contact at all. In Facebook messages from 2011, AW responded to Marelli with “STOP TALKING TO ME UNTIL U GET RID OF [STEPFATHER]!!!!!!!” and “STOP IT I WILL BLOCK THIS I AM NOT AFRAID TO SO STOP!!”

¶6        AW submitted many examples of communication she received from Marelli over the course of more than ten years. Those communications included handwritten letters and some photos with messages written on them, such as the following, which we present unedited for grammatical errors:

  • [AW] give your mom a call with [heart drawing] always mom.
  • I am sorry that you have forgotten the moments when you had with [Stepfather] to be your dad. I hope someday you will remember with all my heart and soul I loved you and will always love you because you are my girly for eternity.
  • We all make mistakes in life, it is what we learn from them is the most important. Forgive yourself, forgive me I am truly sorry for all the many tears & fears you went through without your mothers warmest embrace . . . with love mom.
  • [Stepfather] sure misses being your dad [heart drawing] be kind be forgiving be of great courage.
  • Oh I miss my little girl that is all grown up. I love every min every hour every dam week month & year of your life. I hope to enjoy and embrace my lovely daughter again to look into your loving eyes and find you again. With love Mom.
  • All my children was mislead away from the true. I have been told recently that I am not in reality but you see Reality isn’t the truth.

¶7        Some of the photos sent to AW included pictures of both Marelli and Stepfather. Marelli also sent several publications and transcripts of public addresses from her religious leaders covering a wide range of topics.

¶8        AW also asserted that Marelli made two unwanted visits to her. The first occurred on AW’s sixteenth birthday, when Marelli went to her school. The second was on her seventeenth birthday, when Marelli went to AW’s house.

¶9        In 2019, AW commenced the present action against Marelli, claiming intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent sexual abuse. Marelli moved for summary judgment on the three claims. Shortly after filing the summary judgment motion, Marelli sent AW a second box of letters, religious publications, and some of AW’s old toys. AW argues that even though service of the complaint put Marelli on notice that her conduct caused AW distress, she nonetheless sent AW the box full of additional communication. AW filed a supplemental opposition to the motion, arguing that Marelli sent the communication with knowledge that AW did not want any contact with her. Marelli moved to strike the supplemental opposition, arguing that the Utah Rules of Civil Procedure allow for only supplemental authority not supplemental facts.

¶10      The district court allowed the supplemental opposition “in the interest of justice” and considered it in its decision. The district court granted Marelli’s motion for summary judgment on all three of AW’s claims. On the IIED claim, the court concluded that Marelli’s conduct was not objectively outrageous. The court concluded that the NIED claim failed because AW did not show that Marelli’s conduct objectively amounted to the “type of conduct ‘especially likely’ to cause severe and unmanageable emotional distress.” Finally, on the negligent sexual abuse claim, the court concluded there was no support in the record that Stepfather had a history of inappropriate sexual behavior with children of which Marelli was aware or that Marelli’s failure to report the alleged abuse harmed AW. AW appeals.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in granting Marelli’s summary judgment motion with respect to each of her three claims. We review a grant of summary judgment for correctness, giving “no deference to the district court’s legal conclusions.” Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 7, 466 P.3d 190 (cleaned up).

ANALYSIS

¶12 Summary judgment is appropriate where the moving party shows that “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). We conclude that the district court properly granted summary judgment disposing of all three of AW’s claims against Marelli. We address the IIED, NIED, and negligent sexual abuse claims in turn.

  1. IIED

¶13      The district court concluded that Marelli’s conduct was not outrageous as a matter of law because all Marelli’s “voluminous” communications with AW “plainly represent attempts by [Marelli] to reconcile with her daughter.” AW contends that the district court erred because it (1) stepped into the role of the jury when determining that all the communications were an attempt to reconcile, (2) failed to consider other evidence of Marelli’s outrageous behavior, and (3) applied an unnecessarily restrictive test for outrageous behavior. But we agree with the district court.

¶14      In addition to elements not at issue here,[3] to succeed on a claim for IIED, a plaintiff must show that the defendant’s conduct “was outrageous and intolerable in that it offended generally accepted standards of decency and morality.” Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 37, 56 P.3d 524 (cleaned up). Our supreme court in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), explained that “the standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant’s actions offend against the generally accepted standards of decency and morality.” Id. at 977 (cleaned up). The court clarified that this standard does not “weaken” that adopted by the Restatement (Second) of Torts, which uses the language “beyond all possible bounds of decency.” Id. at 977 n.19; see also Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965). The court made clear that the use of the language “generally accepted standards of decency” was not a change in the standard but only an acknowledgment that “all possible bounds” is difficult for any court to determine. Retherford, 844 P.2d at 977 n.19The court emphasized that it “in no way softened the Restatement’s requirement of extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.” Id. (cleaned up). As made explicitly clear by the court, this standard still applies and is appropriate to apply in this case.

Conduct is not necessarily outrageous merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal. To be considered outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair. Indeed, in order to prevail on a claim for IIED, a plaintiff must be able to prove that the defendant engaged in extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.

Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

¶15      On a claim for IIED, “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. (cleaned up). “However, where reasonable [minds] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Cabaness v. Thomas, 2010 UT 23, ¶ 36, 232 P.3d 486 (cleaned up), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, 424 P.3d 897. “[A] district court is not required to draw every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party. Instead, it is required to draw all reasonable inferences in favor of the nonmoving party.” IHC Health Services, Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. “An inference is unreasonable if there is no underlying evidence to support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 21, 479 P.3d 1116 (cleaned up).

¶16      Looking at the “voluminous” examples of communication from Marelli to AW, we agree with the district court that the communications represent attempts—though at times poorly executed—of a mother to reconcile with her daughter. While statements such as “[Stepfather] sure misses being your dad” may not be the most sensitive way for Marelli to rebuild a relationship with her daughter, we cannot conclude that this and all the other communications can be reasonably said to violate “generally accepted standards of decency and morality.” See Prince, 2002 UT 68, ¶ 37 (cleaned up). It is well within the court’s authority to ascertain Marelli’s intent when reasonable minds could not differ, as is the case here.

¶17 When a claim for IIED involves allegedly “ongoing and continuous conduct,” the plaintiff “may recover for the entire course of [the] defendant’s conduct.” See Cabaness, 2010 UT 23, ¶ 27. Considering the whole of Marelli’s conduct—including the facts that the correspondence was unwanted, that Marelli made a couple of unwelcome visits to AW over the last decade, and that Marelli sent AW correspondence after the present lawsuit commenced—does not change our determination that Marelli’s conduct cannot be reasonably found to evoke the outrage or revulsion required to succeed on a claim for IIED.

¶18 The communications and even visits by Marelli to AW represent a mother’s attempt to build a relationship with her estranged daughter and, though insensitive at times, do not rise to the level of extraordinarily vile conduct required. Therefore, we affirm the district court’s grant of summary judgment against AW’s claim of IIED.

  1. NIED

¶19      AW also asserts that the district court erred in dismissing her NIED claim, arguing the court applied the wrong standard and overlooked contrary evidence.

¶20      Prior to 2018 in Utah, plaintiffs outside the “zone-of-danger”[4] had no means to recover for NIED. Mower v. Baird, 2018 UT 29, ¶¶ 75–85, 422 P.3d 837. Mower expanded “recovery for [NIED] in very limited circumstances” where “certain types of relationships, activities, and undertakings” exist that go to “the core of another person’s emotional well-being and security.” Id. ¶ 76. Because the case before us does not involve a zone-of-danger scenario, we apply the principles set forth in Mower. Under the Mower analysis, a plaintiff must establish that (1) the defendant owed a “traditional duty of reasonable care to the plaintiff” and (2) the “relationship, activity, or undertaking [is] of the type that warrants a special, limited duty to refrain from causing severe emotional distress.” Id. ¶ 78.

¶21 The second step requires an additional three-prong analysis asking the following:

(1) Does the relationship, activity, or undertaking necessarily implicate the plaintiff’s emotional well-being?; (2) Is there an especially likely risk that the defendant’s negligence in the course of performing obligations pursuant to such relationship, activity, or undertaking will result in severe emotional distress?; and (3) Do general public policy considerations warrant rejecting a limited emotional distress duty where prongs one and two would otherwise find one to exist?

Id. ¶ 80 (cleaned up).[5]

¶22 The district court considered solely the second prong of this analysis; however, we find that analysis unnecessary as AW’s claim fails on the first prong. The first prong is meant to ensure that the relationship, activity, or undertaking complained of is one “fraught with the risk of emotional harm to the plaintiff.” Id. ¶ 81 (cleaned up). The Utah Supreme Court has made clear that “this prong can be met only in those very limited situations where the emotional well-being of others is at the core of, or is necessarily implicated by, the relationship, activity, or undertaking.” Id. (cleaned up). The court did not delineate all possible relationships, activities, or undertakings that meet this requirement but instead indicated that courts should make this determination on a case-by-case basis with the recognition that this high threshold will be met in very few instances. Id.

¶23 As pointed out by AW, the court in Mower found that a nonpatient parent’s claim against the therapist who caused the parent’s child to develop false memories while treating the child for potential sexual abuse met this threshold as both an activity and relationship that implicates the parent’s emotional well­being. See id. ¶ 97. The Restatement (Third) of Tortsupon which our supreme court based this rule and upon which courts in other jurisdictions have relied—identifies NIED as actions such as the mishandling of a corpse, an erroneous announcement of a death or illness, a physician negligently diagnosing a patient with a serious disease, a hospital losing a newborn infant, an employer mistreating an employee, and a spouse mentally abusing the other spouse. See Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 47 cmt. f (Am. L. Inst. 2012); see also Mower, 2018 UT 29, ¶ 70; see, e.g.Hedgepeth v. Witman Walker Clinic, 22 A.3d 789, 819–20 (D.C. 2011) (applying NIED to a patient receiving a false HIV diagnosis); Doe Parents No. 1 v. State, 58 P.3d 545, 580–82 (Haw. 2002) (applying NIED to a school reinstating a teacher accused of child molestation without sufficient investigation of the claim); Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 7–8 (Nev. 2010) (en banc) (applying NIED to mortuary’s negligent handling of a loved one’s corpse).

¶24      Such a relationship, activity, or undertaking is not present here. While sexual abuse, particularly within one’s own home, is a serious and clearly harmful occurrence for a child, the activity that AW argues supports her NIED claim is Marelli’s continued communications with her, including two brief visits, over the decade following the alleged abuse. While this activity, which we view as attempts by a mother to reconcile with her daughter, may evoke strong emotions, as the district court pointed out, it is not “fraught with the risk of emotional harm.” Mower, 2018 UT 29, ¶ 81 (cleaned up). The expansion of NIED in Mower was extremely limited to the narrow circumstances explained above, and allowing recovery here would expand that rule exponentially. An estranged relationship with a parent is too ubiquitous to meet the specific requirement set out by our supreme court that this rule will be met in very few instances. See id. Applying NIED to the facts before us would open the door to a seemingly endless number of possible circumstances where communication between a parent and child is strained, hurtful, or unwanted. Thus, the activity here does not rise to the level of those “very limited situations where the emotional well-being of others” lies “at the core.” Id. (cleaned up). We therefore affirm the district court’s grant of summary judgment against AW’s claim of NIED.

III. Negligent Sexual Abuse

¶25 AW argues that Marelli was negligent in preventing the alleged sexual abuse AW suffered because Marelli had previous warning about Stepfather’s “inappropriate behavior around children.”[6] The district court found legally insufficient support in the record for this contention—a conclusion with which we agree. To support this claim, AW relies on Neighbor’s declaration that Stepfather wrote on her daughter’s buttocks. AW argues that the district court inappropriately weighed and discounted the declaration, particularly by calling the declaration “one somewhat vague report of inappropriate conduct.”

¶26 In addition to other factors, a negligence claim requires foreseeable injury to establish whether a defendant had a duty “to conform to a particular standard of conduct toward another.” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152 (cleaned up). “What is necessary to meet the test of negligence . . . is that [the harm] be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.” Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (cleaned up); accord Normandeau, 2009 UT 44, ¶ 20. Duty—which includes the issue of foreseeability—is “a purely legal issue for the court to decide.” Normandeau, 2009 UT 44, ¶ 17.

¶27 While summary judgment is appropriate only “when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law,” a plaintiff “is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.” Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15, 320 P.3d 689 (cleaned up), cert. denied, 329 P.3d 36 (Utah 2014). “When the facts are so tenuous, vague, or insufficiently established that determining an issue of fact becomes completely speculative, the claim fails as a matter of law, and summary judgment is appropriate.” Hardy v. Sagacious Grace LC, 2021 UT App 23, ¶ 21, 483 P.3d 1275 (cleaned up); see also Nelson v. Target Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010 (“A plaintiff cannot avoid summary judgment based on doubtful, vague, speculative or inconclusive evidence.” (cleaned up)).

¶28 Although certainly disconcerting, the singular incident described in Neighbor’s declaration is not enough to make it reasonably foreseeable to Marelli that Stepfather would sexually abuse AW and thereby leaves AW’s claim in the realm of vague speculation, which is appropriate for summary judgment. First, the evidence AW points to suggests that the incident with Neighbor’s child was an isolated event. Second, writing on a child’s buttocks during a game, though deplorable and entirely inappropriate, is markedly different than lying in bed with and touching a child’s genitals under her clothing. See McGuire v.Cooper, 952 F.3d 918, 922–23 (8th Cir. 2020) (concluding that summary judgment was appropriate in a case involving a sexual assault as “the prior instances of sexual misconduct [were] not similar in kind or sufficiently egregious in nature to demonstrate a pattern of sexual assault”); Bjerke v. Johnson, 727 N.W.2d 183, 190 (Minn. Ct. App. 2007) (“The foreseeability of a sexual assault often hinges on whether the defendant was aware of prior similar behavior by the third party. Indeed, sexual assault will rarely be deemed foreseeable in the absence of prior similar incidents.” (cleaned up)), aff’d, 742 N.W.2d 660 (Minn. 2007).[7] Finally, AW points to no evidence that Stepfather had taken any liberties with or made any inappropriate advances toward her prior to the incident at issue here. See Doe v. Franklin, 930 S.W.2d 921, 924–29 (Tex. App. 1996) (concluding that summary judgment was not appropriate on a negligence claim where a grandmother left her granddaughter alone with the grandfather after the granddaughter told the grandmother he had sexually abused her).[8] Therefore, seeing insufficient evidence in the record that Marelli should have reasonably foreseen the threat of Stepfather sexually abusing AW, we affirm the district court’s grant of summary judgment on AW’s claim of negligent sexual abuse.

CONCLUSION

¶29 We conclude that the district court correctly granted Marelli’s motion for summary judgment, thereby disposing of all three of AW’s claims against her.

¶30 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Dear Reader: Judge Mortensen recognizes that you may be accustomed to the use of periods after each letter when we use initials in place of a party or witness name. However, he chooses to depart from that practice now and in the future. Removing the periods is both space saving and easier on the eyes.

[2] We recite the facts of the case and draw all reasonable inferences in the light most favorable to AW as the nonmoving party. See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d 749 (“[I]n a summary judgment proceeding, all facts and the reasonable inferences to be made therefrom should be construed in a light favorable to the non-moving party.”).

[3]  “In Utah, a claim for IIED is actionable if: (i) the defendant’s conduct is outrageous and intolerable; (ii) the defendant intends to cause emotional distress; (iii) the plaintiff suffers severe emotional distress; and (iv) the defendant’s conduct proximately causes the plaintiff’s emotional distress.” Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

[4] The zone-of-danger rule set forth in section 313 of the Restatement (Second) of Torts allows a plaintiff within the physical zone of danger resulting from a defendant’s actions “to recover for emotional distress caused by fear for personal safety even though the plaintiff suffered no physical harm as a result of the defendant’s breach of duty.” Mower v. Baird, 2018 UT 29, ¶¶ 51–52, 422 P.3d 837 (cleaned up); see also Restatement (Second) of Torts § 313 (Am. L. Inst. 1965).

[5] The district court and parties have assumed a duty existed by moving directly to step two of the Mower analysis. Therefore, for purposes of this appeal, we do the same and move directly to the three prongs under step two. However, this is not an indication of whether a duty did in fact exist under step one of the Mower analysis in this case.

[6] In her complaint, AW asserted that Marelli’s failure to report Stepfather’s sexual abuse to the proper authorities also constituted negligence—a claim which the district court determined failed. AW does not raise this issue on appeal; therefore, we will not address it.

[7] To support her argument that Marelli should have foreseen the threat that Stepfather posed, AW cites O.L. v. R.L., 62 S.W.3d 469 (Mo. Ct. App. 2001), which states that “[a]s the gravity of possible harm from sexual molestation of a young child is high, we recognize that it may require a lesser showing of likelihood than with other types of injuries.” Id. at 477. However, in O.L., the court concluded that summary judgment was appropriate as the harm was not foreseeable where a grandmother left her grandchild with the grandfather, who then sexually abused the child. Id. at 481. The evidence presented included the fact that the grandfather physically abused the grandmother decades previously and broke her nose, which the child’s father knew about and considered “so remote in time that he had no qualms” with leaving his child in the grandfather’s care. Id. at 478–79. The parents additionally presented evidence that fifteen years prior to the abuse of the child, the grandfather subscribed to Playboy magazine for one year. Id. at 479. Finally, the parents relied on speculative evidence that the grandfather sought extramarital sexual liaisons through advertisements and at a social gathering. Id. The court concluded that the evidence presented was “so tenuous that it [could not] give rise to a genuine dispute as to whether a reasonable person knew or should have known that [the] grandfather might pose a danger to [the grandchild] if she was left unsupervised in his care, thereby breaching a duty of care.” Id. at 481. While the evidence here, namely the incident involving Neighbor’s daughter, is much more related in time and conduct to the abuse AW suffered, it is still tenuous as we have discussed and does not meet even a requirement of a “lesser showing of likelihood,” id. at 477, if that standard were to apply in Utah.

[8] 8. AW cites Doe ex rel. Pike v. Pike, 424 F. Supp. 3d 170 (D. Mass. 2019), to support her argument that a reasonable jury could conclude the harm of sexual abuse was reasonably foreseeable. The case is unpersuasive. In Pike, a granddaughter in the care of her grandparents suffered sexual abuse from her grandfather. Id. at 172. The court concluded that summary judgment was inappropriate because, viewing the evidence in the light most favorable to the nonmoving party, a jury could find that “a reasonable person in [the grandmother’s] position would have or should have known that [the grandfather] was abusing [the granddaughter].” Id. at 182. As AW points out in her brief, the court based this determination on such evidence as “[the grandmother’s] own observations of [the grandfather’s] conduct toward [the granddaughter] and their other grandchildren, including observing him playing the radio game [which involved twisting the children’s nipples], engaging in the tickle game to excess, being in the vicinity when the abuse occurred and ‘locking eyes’ with [the granddaughter] while she sat next to [the grandfather] on the couch and his hands were under the blanket hidden from view.” Id. This evidence involved multiple incidents and red flags that the grandmother chose to ignore, unlike the singular incident here when Stepfather allegedly wrote on Neighbor’s daughter. Furthermore, the Pike court additionally based its decision on the evidence, which AW fails to note, that the grandmother knew the grandfather had been accused of sexual assault previously. Id. With all this evidence taken into account, we do not view Pike as analogous or persuasive.

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Parenting before, during, and divorce litigation By Braxton Mounteer, Legal Assistant

Divorce is already hard enough on the parties involved, but it is even harder on the children of the recently separated family. I speak as a child of divorce, who had to live through it and who has experienced the effect that divorce has had on me and on and my siblings.

When your divorce is contentious or negotiations have broken down, you shouldn’t use your children as messengers between your spouse and you on divorce-related subjects. Your children are not the proper avenue of communication between you and your estranged or ex-spouse.  You’re the adult. Communicate like one.

The worst thing you can do is force your children to choose sides. Forcing your children to pick a side causes damage that may be irreparable. This isn’t just forcing Tim and Susan to choose to live with Mom or Dad. How confident are you that they would choose you anyway (or for how long)? For all of your and your spouse’s faults and failings, you are the children’s parents and your children need you to work (and deserve to have you work) together for the children’s benefit. You need to start (if you have not already started) acting in your children’s best interest and stop thinking of them as problems and/or as solutions to your problems.

Don’t bad-mouth your ex-spouse to your children. Your children are literally a part of their parents, and (except in truly dysfunctional situations) they love both of their parents. If you tell your children their mother or father is a loser, an abuser, or other kind of scoundrel, your children may (and likely will) start to believe that they are that way too. If you’ve disparaged your ex-spouse (whether what you said is true or not), act like the adult that you are, swallow your pride, and apologize for including your children in something you had no business discussing with them.

In the early stages of a divorce, you may be tempted to buy your children’s affection. While it is not the worst thing you could do, it has unintended adverse consequences. If you try to buy your children’s affection in an effort to get a better outcome in the divorce case, only to “cut off” this level of affection or material exchange with your children after the ink dries on the decree, this sends your kids the message that you see your children as pawns for self-serving purposes. If you try to buy your children’s affection for the rest of their lives (or at least the duration of their minority), you’re throwing good money after bad, you’re engaging in an unsustainable practice. Kids will quickly tire of movie tickets and theme parks and start expecting cars and luxury experiences. How long can you keep that up? And how insufferable will your children be if they become accustomed to getting whatever they want?

You reap what you sow. The path of least resistance makes for weak parents and for weak kids. Do right by your children, for their sake and yours.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

  • specifies requirements for the admission of expert evidence; and
  • requires a court to consider evidence relating to domestic violence or abuse by a parent;

▸ imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;

▸ requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;

▸ requires that certain protective order proceedings comply with specific standards; and

▸ makes technical and conforming changes.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In re J.T. – 2023 UT App 157

2023 UT App 157

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.T. AND A.T.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

F.R.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220623-CA

Filed December 21, 2023

First District Juvenile Court, Brigham City Department

The Honorable Bryan Galloway

Nos. 1051672 and 1210454

Christopher A. Beins, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1        After minor children J.T. and A.T. were removed from the custody of their mother (Mother), their grandmother, F.R. (Grandmother), moved to intervene in the child welfare proceeding. The juvenile court ultimately denied Grandmother’s motion, and she appeals. We conclude that Grandmother should have been allowed to intervene but only as a limited-purpose party based on her statutory right to request preferential consideration for temporary placement of the children. We therefore reverse the juvenile court’s ruling on Grandmother’s intervention motion and remand this matter for proceedings consistent with this opinion.

BACKGROUND

¶2        J.T. and A.T. share the same mother but have different fathers. J.T.’s father passed away before the proceedings commenced. In 2021, J.T. turned eleven and A.T. turned eight. As of the time of the events relevant to this appeal, A.T.’s father was subject to an order that prohibited him from contacting A.T.

¶3        Grandmother is the children’s maternal grandmother. In September 2021, she filed a petition in the district court for the appointment of a guardian for J.T. In her petition, Grandmother alleged that Mother was “unwilling or unable to exercise her parental rights,” and Grandmother requested that she, Grandmother, be appointed as J.T.’s guardian.

¶4        The district court ordered Mother and Grandmother to mediation. The mediation resulted in a stipulation, filed in January 2022, under which Mother and Grandmother agreed for J.T., Mother, and Grandmother to each be evaluated by a therapist and to then “abide by the appointed therapist’s recommendations as a temporary order” until final resolution of the guardianship case. Under the stipulation, Mother and Grandmother were “required to cooperate in good faith and follow through with the requests made by the appointed therapist.”

¶5        Thereafter, the Division of Child and Family Services (DCFS) received repeated referrals raising concerns that J.T. and A.T. were being abused and neglected by Mother. In response to those referrals, in May 2022 (while the guardianship action remained pending in the district court), DCFS filed a petition in juvenile court alleging that J.T. and A.T. were “abused, neglected, and/or dependent children.” The children were then removed from Mother’s custody and placed in the temporary custody of DCFS.

¶6        At the ensuing shelter hearing, a temporary placement for the children was discussed. Mother and A.T.’s father objected to Grandmother as a temporary placement option. The juvenile court considered their objections and ordered DCFS to “conduct a reasonable search to determine whether there [were other] relatives of the children or friends of the parents of the children who [were] willing and appropriate to be considered for placement of the children.” The juvenile court was “reluctant to have the children placed with [Grandmother] based on . . . accusations that [had] been made and the history involved in this case,” and it stated that it did “not believe that a kinship placement [was] appropriate if the children [were] going to be kept together.”[1] Nonetheless, the juvenile court left the temporary placement decision “up to the discretion of [DCFS].”

¶7        Shortly after the shelter hearing, DCFS held a kinship meeting and considered all the placement options that had been identified, including placement with Grandmother. DCFS decided to place both children with A.T.’s paternal aunt and uncle.

¶8        Grandmother then filed a Motion to Intervene and for Kinship Placement in the child welfare proceeding. In support of her motion, Grandmother argued that she had a right to intervene under rule 24(a)(2) of the Utah Rules of Civil Procedure.[2] That rule requires, among other things, that the movant “claim[] an interest relating to the property or transaction that is the subject of the action” and that the movant be “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest.” Utah R. Civ. P. 24(a)(2). Grandmother claimed to have three interests that relate to the subject of this child welfare action, each of which, she asserted, might be impaired or impeded by resolution of the action: (1) an interest related to potential grandparent visitation, (2) an interest related to her petition for guardianship of J.T., and (3) an interest related to her right to preferential consideration as a temporary kinship placement for the children.

¶9        The juvenile court acknowledged that Grandmother has “some statutory rights . . . through the child welfare proceeding,” including “the right to be given preferential treatment as it relates to placement.” But it found that none of Grandmother’s rights “would be compromised if she is not allowed to intervene as a party,” and it therefore denied Grandmother’s request to intervene. It also denied her request to be the children’s temporary kinship placement. Grandmother appeals the denial of her request to intervene in the child welfare proceeding.

ISSUES AND STANDARDS OF REVIEW

¶10      On appeal, Grandmother again contends that she has three interests related to this child welfare proceeding, that “her ability to pursue each of these interests was impaired or impeded by prior and prospective rulings in the child welfare case,” and that “[e]ach of these three distinct interests is thus sufficient to support her right to intervene under [r]ule 24(a)(2).”

¶11      As to Grandmother’s first two claimed interests—namely, her interest related to grandparent visitation and her interest related to her guardianship petition—we resolve this appeal under rule 24 and examine whether the claimed interests qualify under rule 24(a)(2) as “interest[s] relating to the property or transaction that is the subject of the [child welfare] action.” Utah R. Civ. P. 24(a)(2). “Whether the intervenor has claimed an interest relating to the property or transaction which is the subject of the action” is an issue that “we review for correctness.” Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 16, 297 P.3d 599 (cleaned up).

¶12 As to Grandmother’s claimed interest related to her right to preferential consideration as a temporary kinship placement in the child welfare action, we resolve the issue through application of a controlling line of Utah Supreme Court cases—In re guardianship of A.T.I.G., 2012 UT 88, 293 P.3d 276; State v. Brown, 2014 UT 48, 342 P.3d 239; and F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421. “Our interpretation of case law . . . presents a question of law reviewed for correctness.” State v. Morgan, 2001 UT 87, ¶ 1, 34 P.3d 767.

ANALYSIS

I. Intervention as of Right Under Rule 24(a)(2)

A.        Legally Protectable Interest

¶13 To the extent that Grandmother based her motion to intervene on rule 24(a)(2) of the Utah Rules of Civil Procedure,[3] she was required to show (1) that her motion was timely, (2) that she “claims an interest relating to the property or transaction that is the subject of the action,” (3) that the disposition “of the action may as a practical matter impair or impede [her] ability to protect [that] interest,” and (4) that “existing parties” do not “adequately represent that interest.” Utah R. Civ. P. 24(a)(2); see also Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 22, 297 P.3d 599. With respect to Grandmother’s first two interests that she claims form the basis of her right to intervene, we conclude that the interests do not qualify under rule 24(a)(2) as interests “relating to the property or transaction that is the subject of the action” and, thus, that she is not entitled to intervene based on those claimed interests.

¶14      We begin our analysis by recounting the relevant history of rule 24(a)(2). As of 1982, rule 24(a)(2) required a showing that the applicant “is or may be bound by a judgment in the action.” Utah R. Civ. P. 24(a)(2) (1982) (emphasis added). Not surprisingly, therefore, the Utah Supreme Court held in 1982 that a “party seeking intervention must demonstrate a direct interest in the subject matter of the litigation such that the intervenor’s rights may be affected, for good or for ill.” Lima v. Chambers, 657 P.2d 279, 282 (Utah 1982) (emphasis added), superseded by rule, Utah R. Civ. P. 24(a)(2) (1987), as recognized in Supernova Media, 2013 UT 7, ¶ 39. The court further explained:

The required interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the intervenor will either gain or lose by direct operation of the judgment to be rendered.

Id. (emphasis added) (cleaned up).

¶15 Rule 24(a)(2) was later amended—effective January 1, 1987—to eliminate the requirement to show that the applicant would be “bound” by a judgment in the action. Utah R. Civ. P. 24(a)(2) (1987). The amended rule instead allowed for intervention when “the disposition of the action may as a practical matter impair or impede [the applicant’s] ability to protect that interest.” Id. The amended rule also changed the requirement to demonstrate an interest in the subject of the action to a requirement to “claim[] an interest relating to” the subject of the dispute. Id. These changes mandated intervention on “more liberal terms” than under the pre-1987 rule.[4] Chatterton v. Walker, 938 P.2d 255, 258 (Utah 1997).

¶16      Notwithstanding the 1987 amendment, both this court and the Utah Supreme Court rearticulated the old standard in subsequent cases where the difference between the old and new standards was not determinative. See In re E.H., 2006 UT 36, ¶¶ 51–52, 137 P.3d 809 (stating in a case where “the parties stipulated that the [intervenor] had the necessary interest,” that “[t]o justify intervention, the party seeking intervention must demonstrate a direct interest in the subject matter of the litigation” (emphasis added)); Interstate Land Corp. v. Patterson, 797 P.2d 1101, 1108 (Utah Ct. App. 1990) (stating that “[t]he applicant’s interest in the subject matter of the dispute must be a direct claim upon the subject matter of the action such that the applicant will either gain or lose by direct operation of the judgment to be rendered” but concluding that the applicants had “no direct or remote interest in the subject matter of the dispute” (emphasis added)).

¶17 In Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, 297 P.3d 599, however, the Utah Supreme Court emphasized the effect of the 1987 amendment. In that case, the party opposing intervention argued that the applicant had “not established a direct, substantial, and legally protectable interest in the . . . matter.”[5] 2013 UT 7, ¶ 35 (cleaned up). The supreme court responded to this argument by explaining that the party opposing intervention had “misstate[d] the standard: [the applicant] is only required to claim an interest relating to the property or transaction which is the subject of the action. [It] is not required to ‘establish’ an interest, and the interest need not be ‘direct’ or ‘substantial.’” Id. (cleaned up). Notably, while the supreme court disavowed the suggestion that our current rule 24(a)(2) requires an applicant for intervention to demonstrate either a direct or a substantial interest in the subject of the action, it did not disclaim the notion that the applicant’s claimed interest must be a legally protectable one. See id. See generally Lima, 657 P.2d at 282 (holding that a party seeking intervention must show that its “rights may be affected, for good or for ill” (emphasis added)). Indeed, in In re United Effort Plan Trust, 2013 UT 5, 296 P.3d 742, which the supreme court had decided less than three weeks before it issued Supernova Media, the court held that an applicant’s interest in the proceeding must be an interest capable of supporting a legally cognizable claim or defense. See id. ¶¶ 37– 38.

¶18      In that case, a set of applicants for intervention claimed an interest in the subject of the action “arising from a ‘sacred priesthood charge, pursuant to scripture and belief’ and grounded in the ‘tenets of [the applicants’] faith.’” Id. ¶ 37. Another set of applicants similarly claimed an interest in the subject of the action “stemming from a ‘priesthood stewardship.’” Id. Although the court did “not question the importance of these interests in the abstract,” it concluded that they were not the kind of interests that triggered rule 24(a)(2). Id. In reaching this conclusion, the court observed that “rule 24(c) of the Utah Rules of Civil Procedure provides helpful context for evaluating rule 24(a)(2)’s ‘interest’ requirement,” and it explained as follows:

Under 24(c), a party moving for intervention must file an accompanying pleading setting forth the claim or defense for which intervention is sought. And rule 8 of the Utah Rules of Civil Procedure, in turn, sets forth the requirements for pleading claims and defenses, requiring for the assertion of a claim: (1) a statement of the claim showing that the party is entitled to relief; and (2) a demand for judgment for specified relief.

Id. ¶ 38 (cleaned up). The court then held that because the applicants there had “asserted no such claim” and “[t]heir purported ‘interests’ [were] abstract ones, disconnected from any ‘demand for judgment for specified relief,’” they “lacked an interest in the subject matter of the dispute sufficient to sustain their intervention under rule 24(a)(2).” Id. In sum then, In re United Effort Plan Trust stands for the proposition that only a legally protectable interest (not an abstract one) qualifies as an interest related to the subject matter of the action under rule 24(a)(2) because only on the basis of a legally protectable interest can one state a cognizable claim for specified relief.

¶19      Representative cases leading up to In re United Effort Plan Trust demonstrate that its holding was not an innovation but, rather, a more explicit articulation of a principle the court had applied over time. For example, in In re adoption of I.K., 2009 UT 70, 220 P.3d 464, the court held that an unmarried natural father who had “failed to timely establish his parental rights” under applicable state law had “no interest in the [adoption] proceeding [for his natural daughter] that would endow him with standing to intervene under rule 24.” See id. ¶ 26. And applying the same principle with a contrasting result, the court held in In re Discipline of Alex, 2004 UT 81, 99 P.3d 865, that a landlord did have “a cognizable interest . . . sufficient to justify its intervention” in an attorney discipline action because the district court in the disciplinary action had ordered a representative of the Utah State Bar to “recover, attach, remove and possess any and all property” left by the attorney in the landlord’s building and the landlord in its motion for intervention had also asserted a contingent right in the attorney’s personal property “pursuant to [an] order of restitution entered in [an] unlawful detainer action” against the attorney. Id. ¶¶ 5, 25–28 (cleaned up). Accordingly, for an interest to qualify under rule 24(a)(2) as an interest related to the subject matter of an action, it must be a legally protectable interest, one on the basis of which the applicant for intervention articulates a demand for specified relief.[6] See In re United Effort Plan Trust, 2013 UT 5, ¶ 38.

B.        Grandmother’s First Two Claimed Interests

¶20 Under the foregoing standard, we now examine Grandmother’s first two interests that she contends entitle her to intervention as of right under rule 24(a)(2).

1.         Interest Related to Grandparent Visitation

¶21      Grandmother claims an interest related to her potential pursuit of grandparent visitation rights under section 30-5-2(1) of the Utah Code. That section provides:

In accordance with the provisions and requirements of this section: (a) a grandparent has standing to bring an action requesting visitation in district court by petition; and (b) a grandparent may file a petition for visitation rights in the juvenile court or district court where a divorce proceeding or other proceeding involving custody and visitation issues is pending.

Utah Code § 30-5-2(1). Grandmother has not filed a petition for visitation under this section, and she does not argue that resolution of this child welfare proceeding may impair or impede her right to file such a petition. Indeed, if Grandmother wishes to petition for visitation under the provisions and requirements of section 30-5-2, she is—and will remain—free to do so regardless of the resolution of this action.

¶22 Instead, Grandmother’s argument is that if she files a petition for visitation under section 30-5-2, the visitation she might be granted could be impaired because of the placement decisions made in this action:

The minor children have been placed in a home 90 miles away from [Grandmother’s] home (they previously lived in the same city); one of the minor children has been placed in a home with a family to whom he is not a relative; and [Grandmother’s] access to visitation with the children has been severely restricted since the date of removal.

¶23      But Grandmother has no legally protectable right to have the children placed close to her home or to have them placed with a relative. And she fails to articulate any legally protectable right that is being violated by other allegedly severe but unidentified restrictions that have been placed on her access to visitation with the children. Accordingly, we affirm the juvenile court’s denial of Grandmother’s intervention motion to the extent that it was based on her claimed interests related to grandparent visitation.

2.         Interest Related to the Guardianship Proceeding

¶24 Grandmother also claims an interest related to the guardianship action she commenced in district court. Grandmother bases this interest on the “signed stipulation in [the guardianship] action [that grants Grandmother] certain rights in relation to the guardianship action.”[7] Under the stipulation, Mother and Grandmother agreed to an individual evaluation of J.T., Mother, and Grandmother and to “abide by the therapist’s recommendations as a temporary order” until final resolution of the guardianship case. Yet in her motion and arguments below, Grandmother never articulated a specified claim for relief based on this stipulation. And she does not identify one on appeal.

¶25      Moreover, we are not convinced that the stipulation gives Grandmother protectable legal rights on which she could base a cognizable claim for relief in this child welfare action. Grandmother’s rights under the stipulation are rights as against Mother, and Mother’s duty to perform is cabined by the “require[ment] to cooperate in good faith.” Thus, for example, we cannot say that Grandmother has a legally protectable right to Mother’s facilitation of a therapist’s evaluation of J.T. when J.T. has been removed from Mother’s custody. Cf. Kilgore Pavement Maint., LLC v. West Jordan City, 2011 UT App 165, ¶ 9, 257 P.3d 460 (“Under the contractual defense of impossibility, an obligation is deemed discharged if an unforeseen event occurs after formation of the contract and without fault of the obligated party, which event makes performance of the obligation impossible or highly impracticable.” (cleaned up)).

¶26 Because Grandmother has failed to point us to a legally protectable right that she has under the stipulation and on the basis of which she seeks some specified relief in this child welfare action, we affirm the juvenile court’s denial of her intervention motion to the extent that it was based on her claimed interest related to the stipulation in the guardianship proceeding.[8]

II. Intervention as a Limited-Purpose Party

¶27      Grandmother’s final argument is that her statutory right to preferential consideration as a temporary kinship placement for the children provides an interest that supports her intervention as of right under rule 24(a)(2). As we have noted already, however, we do not address under rule 24(a)(2) Grandmother’s statutory right to preferential consideration as a temporary kinship placement. Instead, we address intervention based on that statutory right under a controlling line of Utah Supreme Court cases—In re guardianship of A.T.I.G., 2012 UT 88, 293 P.3d 276; State v. Brown, 2014 UT 48, 342 P.3d 239; and F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421.

A.        Relevant Supreme Court Precedent

¶28 We begin by reviewing the identified cases. In In re guardianship of A.T.I.G., the mother of a child was “diagnosed with terminal lung cancer.” 2012 UT 88, ¶ 6. “[I]n anticipation of her death, [the mother] prepared a testamentary appointment of guardianship and conservatorship of [her child] in favor of [the child’s maternal grandparents].” Id. The child’s biological father, who was never married to the mother, was not named on the child’s birth certificate, and he had not signed a voluntary declaration of paternity at the time of the child’s birth. Id. ¶ 3. Nor was the father notified of the mother’s testamentary appointment of guardianship. Id. ¶ 6. After the mother’s passing and funeral, the grandparents took the child home and filed a petition for confirmation of their appointment as guardians, and the district court confirmed their appointment. Id. ¶ 7. When the father learned that the grandparents had been appointed and confirmed as the child’s guardians, he filed an objection. Id. ¶¶ 8, 19. The district court denied the objection, and the father appealed. Id. ¶¶ 9, 11–12.

¶29      On appeal, the grandparents argued that because the father “never formally filed a motion to intervene in [the] case, he lacked standing to object to the guardianship appointment” and “standing to bring [the] appeal.” Id. ¶ 17 (cleaned up). The supreme court disagreed, explaining that because section 75-5-203 of the Utah Code “permits ‘[a]ny person interested in the welfare of a minor’ to file a written objection to a guardianship appointment,” “the statute confers intervenor status on any person who files an objection pursuant to it.” Id. ¶ 18. Accordingly, the court concluded, “when [the father] filed his objection, [he] received statutory intervenor status.” Id. ¶ 19.

¶30      A few years later, in State v. Brown, 2014 UT 48, 342 P.3d 239, the supreme court reached a similar conclusion and elaborated on its reasoning. There, it granted intervention with “limited-party status” to a victim in a criminal proceeding. See id. ¶¶ 13–20. The defendant had been charged with sex crimes (and later pleaded guilty to one of them), and the victim “sought to intervene by filing a notice of a claim for restitution.” Id. ¶¶ 1, 5. “The district court rejected [the] filing on the ground that [the victim] was not a proper party and thus lacked standing to file pleadings.” Id. ¶ 1. The victim appealed. Id. ¶ 2.

¶31 On appeal, the supreme court acknowledged that “[t]he traditional parties to a criminal proceeding are the prosecution and the defense, and a crime victim is not that kind of party; a victim is not entitled to participate at all stages of the proceedings or for all purposes.” Id. ¶ 16. The court noted, however, that “[o]ur crime victims bill of rights recognizes the right of a victim to ‘seek restitution or reparations.’” Id. ¶ 18 (quoting Utah Code § 77-37­3(1)(e)). It then explained that “the right to ‘seek’ connotes a proactive right to ‘go in search of,’ or to ‘try to acquire or gain,’” and that “the anticipated mode of seeking restitution is . . . by a direct filing by the victim.” Id. (cleaned up). Reasoning that “[n]on-parties have no standing to file motions or to otherwise request relief,” the court concluded that the provisions of the code allowing a victim to seek restitution through a direct filing “recognize a victim’s status as a limited-purpose party.” Id. ¶ 19.

¶32      Most recently, in F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421, the supreme court again addressed the right of a crime victim to intervene in a criminal proceeding as a limited-purpose party. The defendant in that case was also charged with sex crimes, and he requested “that the district court conduct an in camera review of [the alleged victim’s] therapy and counseling records and release specific categories of information relevant to his defense.” Id. ¶ 1. The court granted the request, conducted the review, and issued orders quoting relevant excerpts from the records. Id. The court then sealed the records, the case proceeded to trial, and the defendant was convicted of one count of sexual abuse of a child. Id. He then appealed, challenging “the adequacy of the district court’s in camera review.” Id. ¶ 2.

¶33      The appeal came to this court, and we initially “unsealed [the] records and classified them as private, which allowed [the defendant’s] attorney to make extensive use of those records in his opening brief on appeal.” Id. The victim, however, asked this court to reseal her records, and we responded by ordering the records resealed and instructing the defendant “to file a revised brief without references to the records.” Id. The defendant complied but argued that “the sealing order violated his rights.” Id. ¶ 3. The victim “then moved to intervene in [the] appeal as a limited-purpose party to assert her privacy interests.” Id. We did not grant intervention, but we did allow her to file an amicus brief. Id. ¶ 4. She then filed a petition for extraordinary relief in the supreme court, seeking an order allowing her to intervene as a limited-purpose party. Id. ¶¶ 4–5.

¶34 The supreme court held that the victim was entitled to limited-purpose party status “under the reasoning of State v. Brown and as provided in Utah Rule of Evidence 506.” Id. ¶ 35. The court determined that “[t]he reasoning of State v. Brown can be distilled into this general rule: if the law gives crime victims the ability to proactively assert a right or seek a remedy, then they may enforce those specific rights as limited-purpose parties in criminal proceedings.” Id. ¶ 37. Therefore, the question was “whether the law [gave the victim] the right to proactively assert her privacy interests in her privileged mental health records.” Id.

The court declared that it did because under rule 506, “a patient has a privilege to refuse to disclose and to prevent any other person from disclosing information that is communicated in confidence to a mental health therapist for the purpose of diagnosing or treating the patient” and “the privilege may be claimed by the patient.” Id. ¶ 38 (cleaned up). The court emphasized that, “[s]imilar to the phrase ‘seek restitution’ in Brown, the phrase ‘claim the privilege’ [in rule 506] connotes a proactive right.” Id. Because rule 506 gave the victim a proactive right to “assert that privilege and directly oppose [the defendant’s] attempts to gain access to her records,” the court concluded that the victim “possess[ed] the status of a limited-purpose party.” Id. ¶ 39 (cleaned up).

¶35 The court in F.L. also expressly addressed intervention under rule 24 of the Utah Rules of Civil Procedure. See id. ¶ 37 n.36. It observed that the defendant and the victim had spent “much of their briefing arguing over whether [the victim] should be allowed to intervene through Utah Rule of Civil Procedure 24, which [the victim] argue[d] should apply to [the] criminal proceedings under Utah Rule of Civil Procedure 81(e).” Id. The State, on the other hand, argued that the victim did “not need to satisfy the requirements of rule 24 to become a limited-purpose party under Brown.” Id. Importantly, the court “[chose] the narrower option and resolve[d] [the] case based on Brown and Utah Rule of Evidence 506 rather than rule 24,” emphasizing that (1) it had previously “held that the traditional parties to a criminal proceeding are the prosecution and the defense, and a victim is not entitled to participate at all stages of the proceedings or for all purposes”; (2) “rule 24 allows a person to become a full-fledged party to the proceeding in every respect”; and (3) it was “concerned with the broad consequences of applying rule 24 to allow intervention in criminal proceedings.” Id. (cleaned up).

B.        Right to Preferential Consideration as a Kinship Placement

¶36      As with the father in In re guardianship of A.T.I.G. and the victims in Brown and F.L., the law gives Grandmother the ability to proactively assert a right or seek a remedy in the action into which she seeks to intervene. Specifically, section 80-3-302 of the Utah Code, which addresses shelter hearings in child welfare proceedings, provides that when considering the temporary placement of children removed from a parent’s custody, “[DCFS] and the juvenile court shall give preferential consideration to a relative’s or a friend’s request for placement of the child, if the placement is in the best interest of the child.” Utah Code § 80-3-302(7)(a)(i) (emphasis added). Furthermore, the preceding code section, which also addresses shelter hearings, requires the juvenile court conducting the hearing to “hear relevant evidence presented by the child, the child’s parent or guardian, the requesting party, or the requesting party’s counsel.” Id. § 80-3-301(5)(b)(ii) (emphasis added). Just as the law’s recognition of the rights to “file” an objection, “seek” restitution, and “claim” privacy protections each indicate an ability to proactively assert a right or seek a remedy and, thus, confer limited-purpose intervenor status on persons who exercise those rights, section 80­3-302’s recognition of a relative’s or a friend’s right to “request” preferential consideration for child placement likewise indicates an ability to proactively assert a right or seek a remedy and, thus, confers limited-purpose intervenor status on relatives or friends when they request such preferential consideration. See In re guardianship of A.T.I.G., 2012 UT 88, ¶ 19, 293 P.3d 276 (holding that “when he filed his objection, [the father] received statutory intervenor status” (emphasis added)); State v. Brown, 2014 UT 48, ¶ 19, 342 P.3d 239 (“Non-parties have no standing to file motions or to otherwise request relief. Such rights are conferred only on parties.”).

¶37 Persons who gain this type of statutory or rule-based intervenor status, however, become only “limited-purpose parties” who may participate in the action solely to “enforce those specific rights” that the law upon which their intervention is based affords “the ability to proactively assert.” Id. Hence, Grandmother’s limited-purpose party status allows her to request preferential consideration for temporary kinship placement, see Utah Code § 80-3-302(7)(a)(i), provide relevant testimony and other relevant evidence on the issue of temporary placement during the shelter hearing, see id. § 80-3-301(5)(b)(ii), and be provided information that is anticipated to be reported or requested during the portion of the shelter hearing that she is entitled to participate in as a party, see id. § 80-3-107(1)(a).

¶38 Grandmother contends that to the extent section 80-3-302(7)(a)(i) does “create some right of limited-purpose intervention,” that right should “not preempt” rule 24 of the Utah Rules of Civil Procedure. As reflected in this opinion, we agree with Grandmother to some extent: we do not see inherent inconsistency between rule 24(a)(2) and the Utah Rules of Juvenile Procedure, see supra note 3, and we have therefore analyzed under rule 24(a)(2) Grandmother’s claimed interests that are not of the sort that would give rise to limited-purpose party status, see supra ¶¶ 13–26.

¶39 On the other hand, we note that quite like criminal proceedings where “the prosecution and the defense” are the “traditional parties” and others, including victims, are “not entitled to participate at all stages of the proceedings or for all purposes,” F.L., 2022 UT 32, ¶ 37 n.36, the traditional parties in DCFS-initiated child welfare proceedings are the State (in the interest of the children) and the parents or guardians of the children, and other parties are not entitled to participate for all purposes or at all stages of the proceedings. Given these similarities, we are concerned, as was the supreme court with respect to criminal proceedings, “with the broad consequences of applying rule 24 to allow intervention” in child welfare proceedings in instances where the “narrower option” of limited-purpose intervention is available. Id. For this reason, we follow the supreme court’s lead and resolve the portion of this case stemming from Grandmother’s claimed interest in preferential kinship placement under In re guardianship of A.T.I.G.BrownF.L., and Utah Code section 80-3-302(7)(a)(i).[9]

¶40      Based on the foregoing, we hold that when Grandmother requested preferential consideration as a temporary kinship placement for the children, she acquired limited-purpose statutory intervenor status. The juvenile court thus erred by not recognizing Grandmother as a limited-purpose party.

CONCLUSION

¶41      The juvenile court was correct when it declined to grant Grandmother’s request to intervene in this child welfare matter under rule 24(a)(2) of the Utah Rules of Civil Procedure based on her claimed interests related to grandparent visitation and the stipulation in the guardianship action in district court. The court erred, however, when it did not recognize Grandmother’s status as a limited-purpose party. We therefore reverse in part the juvenile court’s denial of Grandmother’s motion to intervene and remand for further proceedings consistent with this opinion.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In re R.G. – 2023 UT App 144 THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court’s order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father’s sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father’s parental rights.

BACKGROUND[1]

¶2        Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child’s mother (Mother)[2] had tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3        Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father’s and Mother’s custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child’s biological half-siblings.

¶4        A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father’s sister (Aunt), who lived in Georgia. Father made the same request.

¶5        In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father’s admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.[3] Child was placed in DCFS’s custody, and the court set Child’s permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6        In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).[4] Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child’s social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7        For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June,

the court ordered DCFS “to move forward with the ICPC.” At a hearing in August, the State informed the court that “the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child].”

¶8        After multiple failed attempts to obtain Child’s social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9        Reunification services to Father were terminated in February 2021 due to Father’s noncompliance with the child and family plan. In June, the State filed a petition to terminate Father’s parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father’s counsel indicated that Aunt had “completed and submitted” to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire “from the get-go” had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11      At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don’t think we have anything more current than that as far as what’s happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a “backup plan” because Child was in a kinship placement with Foster Family and had been there for a “long” time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child’s placement goal, the parties were in “a holding pattern” and Child could not yet be placed with Aunt because “the home study hasn’t been approved” and the ICPC was therefore not complete.

¶12      Trial on the State’s petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father’s counsel moved to be released due to this failure, and the juvenile court granted counsel’s motion. The trial then proceeded by proffer. At the close

of trial, the court entered an order terminating Father’s parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child’s foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child’s social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received “minimal updates” from Georgia— despite the fact that she had followed up “[a]bout every month” —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the “proper channel” for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS “would have given it to her.” Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, “Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time.” At the time of trial, however,

Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15      Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child’s biological half-siblings. Caseworker also noted that DCFS has no “level of preference” for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its “internal standards” by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child “is in good hands” with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from Foster Family would be a “disruption.” However, Father blamed DCFS for the delay in the ICPC approval, claiming that Aunt had done “everything she possibly could.”

¶17 Foster Parents both testified about Child’s strong relationship with Foster Family. Child’s foster mother (Foster Mother) stated that Child is “almost inseparable” from her foster sibling and that Child and her biological half-siblings “have a great relationship.” Foster Parents expressed their desire to adopt Child, and Foster Mother explained that it would be “devastating” for the entire family, including Child, if Child were to be removed from their home.

¶18      In addition, Foster Mother testified that allowing Child to remain in contact with Father might not be in her best interest because “[t]here’s just a lot of anxiety that happens with [Child] after visits.” Specifically, Child “was having night terrors . . . when we were doing visits. She would wake up crying, but you couldn’t actually wake her up. She was just crying . . . .” Foster

Mother stated that the night terrors stopped when the visits with Father stopped.

¶19      Moreover, Father had a history of engaging in violent and threatening behavior. Specifically, Father threatened Caseworker when she canceled a visit after Father failed to check in, and from then on, DCFS was required to provide extra security during Father’s visits. Father also threatened Foster Parents and had been found looking up Foster Parents’ contact information. And Father admitted to committing violent acts against Mother on several occasions.

¶20 On June 28, 2022, approximately two months after the termination trial, the juvenile court entered a thirty-page order terminating Father’s parental rights to Child. The court found that DCFS made “reasonable efforts” in pursuing the ICPC, including that Caseworker had worked to obtain the necessary documentation and complete the ICPC paperwork as quickly as possible, that Caseworker followed up on the status of the ICPC “about every month,” that Georgia had provided “minimal updates” on the ICPC throughout the case, and that Father’s testimony that Aunt had completed the ICPC and was “cleared” was not credible. Further, the court found that it was in Child’s best interest to remain with Foster Family because Child had become “integrated” into Foster Family, because Child had developed strong bonds with her foster sibling and half-siblings, and because removing Child from her existing placement would be difficult. Moreover, the court found that Aunt “did not request contact with [Child] and has not met her.” Based on these findings, the court concluded that termination was strictly necessary to protect Child’s best interest. It explained:

[T]his Court must consider all the permanency options for [Child] and whether she can be equally protected and benefitted by an option other than termination. One option is for a placement with

[Aunt] in Georgia. However, at the time of trial the ICPC had not been approved, legally barring such placement. Further, at this point, the placement is not in [Child’s] best interest. [Child] has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt]. . . . When viewed from [Child’s] point of view, as required by statute, termination is strictly necessary so that the loving family attachments she has made with [Foster Family] and her biological [half-siblings] can be preserved through adoption.

¶21      Father filed a notice of appeal of the juvenile court’s termination order on July 7, 2022. On July 18, the court held a post-termination review hearing. Because Father’s parental rights had been terminated, he did not attend the hearing; only the State, Caseworker, and the GAL were present. The parties discussed Child’s welfare as well as the status of the ICPC. Following the hearing, the court issued an order indicating that the ICPC had been approved but declining to alter Child’s placement. The court reasoned as follows:

[DCFS’s] court report indicates that [Child] continues to do well in the foster placement with her biological siblings. In June, 2022 [DCFS] received an approved ICPC from Georgia for [Aunt]. [Aunt] has never met [Child] and has no relationship with her. She never requested contact or updates during the case. It would not be appropriate or in [Child’s] best interest to change placements at this point in the case so [DCFS] sent a Case Closure Form to Georgia.

ISSUE AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his parental rights to Child, arguing that the court erred in concluding it was strictly necessary to terminate his parental rights. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.”[5] In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified)However, Father acknowledges that he did not raise this issue below, and he therefore asks us to review the court’s strictly necessary determination for plain error.[6] To succeed on a claim of plain error, Father must show that “(1) an error exists; (2) the error should have been obvious to the juvenile court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” In re S.T., 2022 UT App 130, ¶ 14, 521 P.3d 887 (quotation simplified).

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

it was strictly necessary to terminate his parental rights because the court did not adequately consider other feasible placement options for Child. Father’s challenge largely concerns the court’s consideration of the ICPC and whether Aunt was a feasible placement option. Because Father did not raise this issue below, to succeed on appeal he must show that a harmful error exists and that the error should have been obvious to the juvenile court. See In re J.A.L., 2022 UT 12, ¶ 12, 506 P.3d 606.

¶24 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[7] In re S.T., 2022 UT App 130, ¶ 33, 521 P.3d 887 (quotation simplified). Here, the juvenile court determined it was strictly necessary to terminate Father’s parental rights because there was no option available, short of termination and adoption, that would equally protect and benefit Child. In

 

making this determination, the court considered, among other options, permanent guardianship with Foster Parents and permanent guardianship with Aunt. Ultimately, the court decided against placement with Aunt for two reasons. First, Aunt was in Georgia, and “at the time of trial the ICPC had not been approved, legally barring such placement.” Second, placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].”

¶25      Father assails the juvenile court’s reasoning on both points. As to the first, Father contends the ICPC was approved before termination was ordered and therefore it should have been adjudicated with the termination petition. And as to the second, Father contends the court’s analysis was inadequate and based on categorical concerns. For the reasons discussed below, his attack is unavailing.

¶26      First, Father mischaracterizes the record regarding the ICPC. Father asserts that the ICPC “was definitively completed before the written order of termination of parental rights [was] entered” but that the results were “concealed by DCFS until post-termination proceedings.”[8] But Father’s position on this point is undermined by his concession that “[n]one of the parties can conclusively state [when the ICPC was approved] because [DCFS] never presented this information.” Indeed, it is unclear from the record whether DCFS received the approved ICPC before or after the court entered its final order terminating Father’s parental rights. The only definitive information available in the record is that the termination trial was held in April 2022; the court entered its termination order on June 28; and on July 18, the court held a post-termination review hearing, during which DCFS reported that in June 2022 it had “received an approved ICPC from Georgia” for Aunt. Therefore, while the approved ICPC may have been received by DCFS while the matter was still under advisement by the court, Father has not demonstrated that this was absolutely the case.

¶27 Furthermore, regardless of whether the approved ICPC was presented to the juvenile court pre- or post-termination, on the facts of this case, Father cannot demonstrate that the court’s strictly necessary determination would have been any different had it received the ICPC earlier.[9] As an initial matter, it is undisputed that DCFS informed the court about the approved ICPC and the court considered the implications of that approval during a post-termination review hearing. Indeed, during the review hearing, the court stated that although the ICPC for Aunt had been approved, “[i]t would not be appropriate or in [Child’s] best interest to change placements at this point in the case.” The court reasoned that Child “continues to do well in the foster placement with her biological [half-]siblings,” whereas Aunt “has never met [Child] and has no relationship with her. [Aunt] never requested contact or updates during the case.” Because the court’s decision to not change Child’s placement post-termination rested at least in part on Aunt’s lack of engagement throughout the duration of the years-long case—including after the ICPC was approved—there is no indication that an earlier receipt of the approved ICPC would have had any bearing on the court’s reasoning. See In re G.D., 2021 UT 19, ¶ 81, 491 P.3d 867 (finding that a juvenile court’s strictly necessary analysis was not deficient where the court declined to “admit and consider the evidence [the appellants] presented after trial” because neither Utah law nor Utah caselaw “requires a juvenile court to consider supplemental evidence that merely elaborates on a factor the court already considered in its ‘strictly necessary’ analysis—especially when that evidence does not address or refute the considerations on which the court relied to reach its conclusion”).

¶28 Relatedly, Father glosses over the import of an approved ICPC. While an approved ICPC is a precursor to any out-of-state placement, an approved ICPC does not guarantee placement. After a child is removed from a parent’s custody, the juvenile court must “determine whether there is a relative . . . who is able and willing to care for the child.” Utah Code § 80-3-302(6)(a). If the court identifies an out-of-state relative as a potential placement, the court must comply with the procedures and requirements outlined in the ICPC before ordering that the child be placed in another state. See id. § 80-2-905. Following the approval of an ICPC, the court “shall give preferential consideration to a relative’s . . . request for placement of the child, if the placement is in the best interest of the child.” Id. § 80-3-302(7)(a)(i) (emphasis added). In other words, the plain language of the statute “does not guarantee that an identified relative . . . will receive custody of the child.” Id. § 80-3-302(18). Accordingly, the court was not required to place Child with Aunt if doing so was not in Child’s best interest. And as discussed below, the court’s best interest analysis was adequate to foreclose placement with Aunt.

¶29      Moreover, contrary to Father’s assertion, the juvenile court properly considered feasible placement options other than termination and adoption. As stated above, the court articulated two reasons in support of its strictly necessary determination. In addition to concluding that Aunt was legally barred as a placement option because the ICPC was still pending, the court found that placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].” On the facts of this case, this determination was not erroneous.

¶30      Our legislature has expressed a strong preference for maintaining familial bonds. To that end, a court may terminate a parent’s rights only if termination is strictly necessary to promote a child’s best interest. Courts ordering termination “must start the best interest analysis from the legislatively mandated position that ‘[w]herever possible, family life should be strengthened and preserved.’” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (quoting Utah Code § 80-4-104(12)(a)). However, once a parent is found to be unfit, a court may terminate the parent’s rights if doing so “is strictly necessary for the welfare and best interest of the child.” Id. ¶ 62. At this stage, the court must “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code § 80-4-104(12)(a).

¶31      In evaluating whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Id. § 80-4-104(12)(b)(ii). This requires the court to “explore whether other feasible options exist that could address

the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency.” In re J.A.L., 2022 UT 12, ¶ 25. Instead, the court must analyze the “particularized circumstances of the case” and explore whether an alternative arrangement “can equally protect and benefit the children in the case before it.” Id. (quotation simplified). And “when two placement options would equally benefit a child, the strictly necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75.

¶32 Father contends the juvenile court erred in finding that termination was strictly necessary because the court ignored that Aunt “was the preferred placement” and instead relied on “categorial concerns” to support its determination. However, neither point is well taken, and the court’s rationale is sufficient to justify its decision to terminate Father’s parental rights.

¶33 Father asserts that Aunt “was the preferred placement” because “[t]his is a case where both placement options would equally benefit” Child and “placement with [Aunt] did not necessitate termination of parental rights.” This assertion is without merit. Our caselaw is clear that the preferential status afforded to a placement option that does not necessitate termination exists only where the two placement options “equally benefit” the child. See id. But here, there is no evidence to suggest that placement with Aunt would “equally benefit” Child.

¶34 Indeed, the juvenile court’s comprehensive termination order included multiple findings concerning Aunt. Specifically, the court found that Caseworker had contacted Aunt in May 2020 to start the ICPC process. Despite this contact, at the time of trial approximately two years later, Aunt had “not request[ed] contact

with [Child] and [had] not met her.” Although Aunt may have not been available as a placement option prior to approval of the ICPC, nothing was preventing her from contacting Child and forming a relationship with her. And given the duration of the proceedings, Aunt was given ample time to do so.

¶35      Conversely, the juvenile court found that Child was in an appropriate adoptive placement with Foster Family. Among other things, Child had been living with Foster Family since “shortly before she turned one month old,” and Child had developed strong bonds with her foster sibling and two half-siblings. Yet Father does not grapple with the import of these relationships. Notably, Child is in a kinship placement with Foster Family since Child’s biological half-siblings were adopted into Foster Family. Moreover, as this court has recently recognized, “the biological connection between siblings matters.” See In re A.H., 2022 UT App 114, ¶ 42, 518 P.3d 993 (“The importance of sibling relationships is well recognized by courts and social science scholars, because a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Such bonds are often especially important to children who experience chaotic circumstances like abuse or neglect, because in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” (quotation simplified)), cert. granted, 525 P.3d 1279 (Utah 2023). Given the court’s competing findings about each potential placement, we cannot say that placing Child with Aunt—an individual she has never met—would equally benefit Child where Child is already in a kinship placement with her half-siblings. As a result, Aunt was not a preferred placement.

¶36 Moreover, the juvenile court did not merely rely on categorical concerns when determining that termination was strictly necessary. On this point, Father contends the court’s decision was based on the categorical concern that removing a child from a foster family with whom the child is bonded will disrupt and negatively impact the child’s life. See id. ¶ 56. To be sure, the court’s determination hinged in large part on Child’s attachments to Foster Family, including to her two biological half-siblings, and the potential detriment to Child that would result from removal from that placement. However, the court’s conclusion was also based on the fact that Aunt’s relationship with Child was nonexistent and that placing Child with Aunt would therefore be particularly destabilizing. Consideration of the effects of a potential disruption, when based on case-specific facts, is entirely proper. Indeed, courts are statutorily required to consider continuity of care when determining whether to terminate parental rights. See Utah Code § 80-4-303(1)(a) (requiring courts to consider “the physical, mental, or emotional condition and needs of the child”); id. § 80-4-304(5) (requiring courts to consider “the length of time the child has lived in a stable, satisfactory foster home and the desirability of the child continuing to live in that environment”). And this court has recently recognized as much, noting that the potential effect of changing a placement is “a legitimate concern, and one that courts should take into account.” In re A.H., 2022 UT App 114, ¶ 56. In sum, the court’s determination here was not based on a categorical concern inasmuch as the court considered case-specific facts such as the impact of the potential disruption in light of Child’s nonexistent relationship with Aunt.

¶37 Finally, and very importantly, even if Father is correct in his assertion that the ICPC was completed before the termination trial, the ICPC approval and resulting potential for placement with Aunt was not the lynchpin of the juvenile court’s strictly necessary determination. As discussed above, placement with Aunt was not in the best interest of Child because of the shortcomings in that option as identified by the court. And a permanent guardianship with Foster Parents put in place to preserve Father’s residual parental rights and ensure Child’s connection to her half-siblings was also not in Child’s best interest as the court identified significant problems with Father’s continued parental connection to Child vis-à-vis Foster Family. Specifically, the court found that Child had “already experienced anxiety and night terrors during visits” with Father and that Father’s “threats toward [Foster Family] and his propensity for violence puts [Child and Foster Family] at risk.”

CONCLUSION

¶38 Father has not shown the juvenile court clearly erred in determining that it was strictly necessary to terminate his parental rights. Regardless of when the court received the approved ICPC, it adequately considered the results. Further, an approved ICPC does not guarantee placement, and Father has not demonstrated that the court plainly erred when considering other feasible placement options. Accordingly, we affirm the court’s order terminating Father’s parental rights.

 

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In re G.H. – 2023 UT App 132 – juvenile court grandparent guardianship

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.H. AND R.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.G.,

Appellant,

v.

R.G. AND R.G.,

Appellees.

Opinion

No. 20220920-CA

Filed November 2, 2023

Seventh District Juvenile Court, Price Department

The Honorable Craig Bunnell

No. 1210014

Steve S. Christensen and Clinton Brimhall,

Attorneys for Appellant

Colleen K. Coebergh, Attorney for Appellees

Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.

BACKGROUND

¶2        AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.

¶3        At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.

¶4        After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]

¶5        The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.

¶6        Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.

¶7        While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”

¶8        With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.

¶9        Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”

¶10      Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without child­care supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”

¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.

¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.

¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.

¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”

¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.

¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.

¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.

¶18      In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.

¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”

¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.

¶22      Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”

¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .

Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.

¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.

ANALYSIS
I. Neglect

¶27      “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3­402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).

¶28      Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.

¶29      First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.

¶30      Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.

¶31      Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”

¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”

¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.

¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.

¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]

II. Parent-Time

¶37      Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.

¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”

¶39      But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).

¶40      Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.

¶41      A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).

¶42      We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.

Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.

III. Venue

¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.

¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.

¶45      First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.

¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.

¶47      Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.

CONCLUSION

¶48      We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.

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[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.

 

[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.

[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.

[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”

[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1­102(3)(a).

[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:

[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.

[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.

[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.

[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.

[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6­350(1)(b).

[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.

[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g.Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).

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In re K.A.S. – 2023 UT App 138 THE UTAH COURT OF APPEALS STATE OF UTAH, IN THE INTEREST OF K.S., A PERSON OVER EIGHTEEN YEARS OF AGE.

STATE OF UTAH, Appellee, v. K.S., Appellant. Opinion No. 20210291-CA Filed November 16, 2023 Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1108274 Monica Maio, Marina Pena, Sam Pappas, and Hilary Forbush, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1        K.S., a minor, spent several weeks babysitting the infant child of some family members while they were at work. When the infant’s parents returned home one day, the infant was in pronounced distress. The infant was taken to the hospital, but she died a few days later.

¶2        K.S. was charged in juvenile court with having committed child abuse homicide. At the close of trial, the juvenile court found that K.S. had committed the crime and adjudicated K.S. delinquent as a result. K.S. now appeals that adjudication, arguing that there was insufficient evidence to support it. For the reasons set forth below, we affirm.

BACKGROUND

¶3        A.M., a four-month-old infant, died on May 10, 2019. Several medical experts later testified that the cause of death was a brain injury and that the fatal injury was likely inflicted in a non-accidental manner. The question at the heart of this case is who inflicted the fatal injury.

¶4        A.M.’s parents (Mother and Father) both worked and needed someone to watch their two children (A.M. and a two-year-old son) during the day. After an arrangement with a previous babysitter fell through, Mother and Father learned that K.S., the 16-year-old son of Mother’s cousin, was available to babysit. Although K.S. had no prior child-care experience, he began watching the children in April 2019. Because of K.S.’s lack of experience, Father had to teach him the basics of childcare, including how to prepare a bottle, how to change a diaper, and how to calm A.M. down and “hold her correctly.” K.S. frequently stayed overnight to save on gas, sleeping on a couch in the front room.

¶5        On May 2, Mother and Father took A.M. to the emergency room because A.M. had been sick for a few days. On examination, the ER doctor found “nothing worrisome,” and tests indicated that her heart rate, oxygen saturation, and temperature were all “reassuring.” The ER doctor concluded that A.M. “might have a bug” and sent her home. By May 6, A.M. seemed to be “feeling a little better.”

¶6        K.S. slept over at the house on the night of May 6 to 7, and A.M. was “real fussy” that night. According to her parents’ subsequent accounts, though, A.M. was “crying normal[ly]” and even “cheery, smiling, [and] glowing” by the next morning. Mother left for work by 9:30 a.m.[1] Father later testified that he left for work between 8:30 and 8:45 a.m. (though, as will be discussed below, testimony from an officer suggested that Father didn’t actually leave until 10:55 that morning).

¶7        At some point between 11:36 and 11:56 a.m., K.S. sent Mother a video that showed A.M. experiencing troubling symptoms—specifically, A.M. had a limp arm and labored breathing. K.S. texted, “Is this normal?” After viewing the video, Mother asked her sister (Aunt) to stop by on her lunch break to check on A.M.

¶8        Aunt arrived at about 1:20 that afternoon. A.M. seemed “lethargic” to her, and it seemed like “moving her was upsetting her more, almost like it was causing her pain.” Aunt thought that A.M. might have an ear infection, so she gave her some ibuprofen. After returning to work, Aunt told Mother her concern about the ear infection and encouraged Mother to take A.M. to the hospital after Mother’s shift ended. During her own lunch break an hour later, Mother returned home and checked on A.M., who was “fussy and whiney”; when Mother picked A.M. up, she also observed her legs “dangling down.” Mother was concerned enough to schedule an appointment with a pediatrician, but she made lunch and returned to work without taking further action.

¶9        There was no additional contact between K.S. and the parents until around 7:45 that evening, when K.S. called Mother and reported that A.M still didn’t seem to be feeling better. Mother said she was on her way. After picking Father up from his work, Mother arrived home to find A.M. “pale as a light.” Father performed CPR while Mother called 911. Mother told the 911 dispatcher that A.M. had been “fine throughout the day and stuff.”

¶10 A.M. was first taken to the Intermountain Healthcare hospital, then life-flighted to Primary Children’s Medical Center (Primary Children’s). Doctors at Primary Children’s concluded that A.M. had suffered a severe brain injury.

¶11      Police detained Mother and Father for questioning before allowing them to see A.M. While awaiting the arrival of a detective, Father engaged police officers in light-hearted banter, telling them “a story about getting drunk and . . . dancing on the table,” as well as a story about a woman beating up a man in their apartment complex. Mother and Father eventually met with a detective who questioned them about the events of the day. This detective later testified that, during these interviews, Father told him that he had left for work around 10:55 that morning.

¶12      The following day, K.S. sent Father two text messages. The first said: “im so sorry. . . . if it weren’t for my laziness and wanting to relax [A.M.] wouldn’t be like this and if i had never tossed her up in the air to try and cheer her up.” The second said: “im truly sorry plz tell [Mother] im so so so sorry and i would never intentionally hurt your kids out of anger or frustration.”

¶13      A.M. died two days later. Later that week, Dr. Christensen, the medical examiner, performed an autopsy and determined that the “primary cause” of death was “blunt injuries” to A.M.’s head. Dr. Christensen classified the death as a homicide.

¶14 The State subsequently charged K.S. with child abuse homicide in juvenile court. Over the course of eight days of trial, the court heard testimony from, among others, both parents, several medical experts, and the responding officer.

¶15      Mother and Father testified about the events on May 7 and A.M.’s health in the relevant period. Mother testified that A.M. was “pretty fine” and “cheery, smiling, [and] glowing” before she left for work that morning. Father testified that, after a few days of being fussy, A.M. “was feeling a little better” and that there was “nothing out of the ordinary” that morning. Father testified that he remembered leaving home between 8:30 and 8:45 a.m. so that he could catch the bus.

¶16 The court also heard testimony from three medical experts—Dr. Thorn, Dr. Hatch, and Dr. Christensen—about the nature of A.M.’s injuries and the timing of those injuries.

¶17 Dr. Thorn. Dr. Thorn was an ER doctor who had “extensive training and expertise specialization in the management of head injury,” and he was the doctor who treated A.M. on May 7 at the Intermountain Healthcare hospital. Dr. Thorn testified that A.M.’s symptoms likely resulted from “non-accidental trauma,” which “is a nice way of saying a child . . . was physically abused.” Dr. Thorn also testified that A.M.’s injuries would have required the application of “[e]xtremely violent” force, though he opined that it might have been “possible” that a person might not have “recognize[d] the severity” of the injury that he or she had inflicted.

¶18      On a CAT scan, Dr. Thorn observed two layers of blood in A.M.’s brain, which suggested to him that A.M. had sustained “at least two” discrete injuries. He estimated that the earlier of the two injuries occurred “within days” to “maybe a week” before May 7. Dr. Thorn speculated that the symptoms that prompted A.M.’s visit to the hospital on May 2 had come from the first brain injury, but he acknowledged that “[w]e’ll never know.” With respect to the injuries that led to A.M.’s death, Dr. Thorn testified that the “most severe injury leading eventually to the death” happened anywhere from “sometime within hours” to “almost right before” the video that was taken on May 7. He further testified that there was “some event soon before arrival [at the ER] that had caused” A.M.’s “respiratory depression.” Dr. Thorn felt unable to narrow the timeframe any further, and he expressed doubt that any doctor “would be able to comment as to a more definitive timeframe.” Dr. Thorn also testified that A.M. “was very, very sick at the time that that video was taken.”[2]

¶19 Dr. Hatch. Dr. Hatch was a recent medical school graduate who was completing a post-residency fellowship in child abuse pediatrics at the University of Utah, and he was part of the team that treated A.M. at Primary Children’s. Dr. Hatch testified that it would have required a significant amount of force to cause A.M.’s symptoms, such as “shaking by itself” or shaking combined “with some form of impact, or impact by itself.” He added that “we don’t observe these kinds of injuries from falls” or even from “significant” car accidents. In Dr. Hatch’s view, A.M.’s symptoms “suggest[ed]” that A.M. had “experienced significant force to her head.” He also opined that anyone who was present when the injuries were inflicted “would know that the force was excessive and that an injury was likely” to follow.

¶20 Dr. Hatch thought there were two potentially plausible explanations for the two layers of blood in A.M.’s brain: he thought it was possible that the blood represented two different injuries that were separated by time, and he also thought it was possible that the blood represented a single injury where some of the blood had changed colors when it mingled with cerebral spinal fluid. Thus, in Dr. Hatch’s opinion, A.M. was definitely injured on May 7, and it was possible that she had suffered an earlier brain injury as well.

¶21      As to the question of timing of the May 7 injury, Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had. So in this situation where she became unconscious, the injury would immediately precede that.” Continuing, Dr. Hatch testified that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.”

¶22 Dr. Christensen. Dr. Christensen is the chief medical examiner for the Utah Department of Health and, as noted, performed A.M.’s autopsy. Dr. Christensen testified that A.M. had suffered a “traumatic” “axonal injury” to her brain and that the injury was “not consistent with having occurred accidentally.” In his view, the force involved would have been “noticeably violent.”

¶23      Like Dr. Thorn, Dr. Christensen saw signs of both an earlier and a later injury. Dr. Christensen agreed that “some of [A.M.’s] prior symptoms”—including the nausea that led to her May 2 visit to the hospital—could have been “related to a prior head injury.” On questioning from the State, however, Dr. Christensen seemed to agree that the later injury was “the ultimately fatal” one.

¶24      Dr. Christensen testified that in “some cases,” fatal injuries can be inflicted as many as three to ten days before the child actually dies. But Dr. Christensen explained that doctors look to “other aspects of the case as well” when estimating the time at which the injuries were inflicted, such as “what was the child’s behavior at various points along the way.” He said that in this case, he thought the fatal injury “occurred around the time” that A.M. arrived at the hospital. He also testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately. I mean very, very quickly. It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”

¶25      After the conclusion of the trial, the court entered a single-sentence ruling determining that the State had met its burden of proving that K.S. committed child abuse homicide. K.S. timely appealed.

ISSUE AND STANDARD OF REVIEW

¶26      K.S. argues there was insufficient evidence to support his adjudication for child abuse homicide. In cases tried without a jury (which include juvenile court proceedings), factual determinations “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4); cf. In re Z.D., 2006 UT 54, ¶ 29, 147 P.3d 401 (holding that an “appellate court must launch any review of factual findings from rule 52(a) of the Utah Rules of Civil Procedure and its ‘clearly erroneous’ test”). “The content of Rule 52(a)’s clearly erroneous standard, imported from the federal rule, requires that if the findings (or the trial court’s verdict in a criminal case) are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings (or verdict) will be set aside.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quotation simplified).

¶27 The parties agree that we should apply the above-cited standard of review to this case. We pause here to note, however, that the parties have disputed whether we should apply an additional layer of deferential gloss in this case as well.

¶28 It’s well-settled that when an appellate court reviews a jury’s verdict, the court views the evidence and all reasonable inferences in the light most favorable to the verdict. See, e.g.State v. Green, 2023 UT 10, n.2, 532 P.3d 930; State v. Bonds, 2023 UT 1, n.3, 524 P.3d 581; State v. Winfield, 2006 UT 4, ¶ 2, 128 P.3d 1171. But there’s a divergence in Utah’s caselaw about whether an appellate court does the same when reviewing a verdict from a bench trial. On this, some Utah cases say no. See, e.g.In re Z.D., 2006 UT 54, ¶ 35 (“An appellate court must indulge findings of fact made by a jury that support the verdict. No such indulgence is required of findings made by a judge.”); Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993) (holding that “an appellate court does not, as a matter of course, resolve all conflicts in the evidence in favor of the appellee” when findings were made by a judge); Walker, 743 P.2d at 193 (noting that “it is not accurate to say that the appellate court takes that view of the evidence that is most favorable to the appellee” when reviewing findings of the court (quotation simplified)). But other Utah cases—including some from our court that reviewed adjudications from juvenile court delinquency proceedings—say yes. See, e.g.State v. Layman, 1999 UT 79, ¶¶ 12–13, 985 P.2d 911 (holding that when “reviewing a conviction, an appellate court should consider the facts in a light most favorable to the verdict,” and then applying that standard to a ruling from “the trial judge, who was the finder of fact” in the bench trial at issue); In re J.R.H., 2020 UT App 155, ¶ 9, 478 P.3d 56 (applying the “light most favorable” standard to a juvenile court adjudication (quotation simplified)); In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (relying on Layman for the proposition that “[w]hen reviewing a juvenile court’s decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination”); see also In re C.C.R., 2011 UT App 228, ¶ 10, 257 P.3d 1106; In re M.B., 2008 UT App 433, ¶ 5, 198 P.3d 1007.

¶29      We need not resolve this conflict here. Again, the parties at least agree that K.S. can only prevail on his sufficiency challenge if he establishes that the verdict was against the clear weight of the evidence, or, instead, if we reach a definite and firm conviction that a mistake has been made. And the parties further agree that we give “due regard” to the juvenile court’s opportunity to “judge the credibility of witnesses.” Utah R. Civ. P. 52(a)(4). For the reasons set forth below, we affirm the juvenile court’s adjudication under these agreed-upon standards alone. We accordingly leave for another day (and, more likely, another court) the question of how to resolve the tension in the cases about whether the additional deferential gloss that applies to jury verdicts should apply to juvenile court decisions as well.

ANALYSIS

¶30      K.S. argues there was “insufficient evidence that [he], as opposed to someone else, caused the injuries that resulted in A.M.’s death.” We disagree.

¶31      The State’s case against K.S. relied on the interplay between three propositions: (i) A.M. died from an injury to her brain that was caused by violent force; (ii) A.M.’s symptoms would have manifested very quickly after the injury was inflicted; and (iii) K.S. was alone with A.M. immediately prior to the symptoms’ initial appearance. There was competent testimony to support each of these propositions.

¶32 Injury. All three medical experts agreed that A.M. died from a brain injury that was caused by violent force. Dr. Thorn testified that A.M.’s injury would have been caused by “[e]xtremely violent” force or a “violent, blunt act,” such as the “shaking back and forth of a child’s brain.” In his view, this was “not an accidentally dropped child.” Dr. Hatch similarly testified that a significant amount of force would have been required, either “shaking by itself,” or shaking combined “with some form of impact,” or “impact by itself.” He added that doctors “don’t observe these kinds of injuries from falls” or even from “significant” car accidents. Dr. Hatch believed anyone “who witnessed an incident like this occur would know that the force was excessive and that an injury was likely” to follow. Finally, Dr. Christensen testified that the injury was “not consistent with having occurred accidentally” and that the force involved would have been “noticeably violent.”

¶33 Timing of symptoms. There was also testimony from medical experts that A.M.’s symptoms would have manifested very quickly after the force that caused the fatal injury. Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had” and that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.” Dr. Christensen similarly testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately.” He added: “It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”[3]

¶34 K.S. was alone with A.M. Finally, there was testimony establishing that K.S. was alone with A.M. immediately before the symptoms’ initial appearance. Mother and Father both testified that A.M. was in good health that morning. Father stated that after a few days of being fussy, A.M. was “feeling a little better” and that there was “nothing out of the ordinary.” Mother also testified that A.M. was “cheery, smiling, [and] glowing” that morning.

¶35      Mother left for work by 9:30 a.m., and at trial, Father testified that he left for work between 8:30 and 8:45 a.m. (though there was some suggestion that he may have left at 10:55 a.m.). At some point between 11:36 and 11:56 that morning, K.S. sent Mother a video showing A.M. with limp limbs and having difficulty breathing.

¶36      The collective import of these propositions is clear. Since K.S. was alone with A.M. for at least a half hour (if not several hours) before A.M.’s symptoms appeared, and since two medical experts testified that A.M.’s symptoms would have appeared very quickly (if not immediately) after the infliction of the injury, it stands to reason that K.S. caused the fatal injury. This would provide a basis to sustain the adjudication.[4]

¶37 K.S. nevertheless argues that there was insufficient evidence to support the adjudication because of various problems with the above evidence and with other aspects of the State’s case. While we certainly agree that there was conflicting evidence on certain points, the problems that K.S. identifies are not so conclusive that we can overturn the adjudication as a result.

¶38      Much of K.S.’s argument is focused on ambiguities in the record about the critical question of timing. K.S. points out that while Dr. Christensen opined that the symptoms likely manifested soon after the injury, Dr. Christensen also acknowledged that “those things”—apparently meaning medical conclusions about the time at which an injury occurred—“are not precise.” K.S. also relies heavily on Dr. Thorn’s testimony that the injury could have occurred anywhere from “almost right before” the symptoms appeared to “hours” earlier. And K.S. further points to Dr. Thorn’s testimony that he didn’t think “you could find anyone else that would be able to comment as to a more definitive timeframe.”

¶39 But when Dr. Thorn opined that he didn’t think that “anyone else” could provide “a more definitive timeframe,” Dr. Thorn was mistaken. As discussed, the State called two medical experts—Dr. Christensen and Dr. Hatch—who each testified under oath that they thought that A.M.’s symptoms would have appeared very quickly (if not immediately) after the fatal injury was inflicted. And to the extent that there was any conflict between the experts’ conclusions on this, the juvenile court was in a better position than we are to determine which version to believe. See, e.g.In re M.M., 2023 UT App 95, ¶ 35 n.9, 536 P.3d 102, petition for cert. filed, October 25, 2023 (No. 20230944) (recognizing that it “is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies” (quotation simplified)); Knowlton v. Knowlton, 2023 UT App 16, ¶ 59 n.13, 525 P.3d 898 (noting that a trial court “is in the superior position to assess the weight of evidence,” including questions about which expert’s testimony to accept), cert. denied, 531 P.3d 730 (Utah 2023); Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (noting that a “fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony, even if that testimony comes from an expert witness” (quotation simplified)).

¶40      K.S. also points to testimony showing that Mother left for work by 9:30 a.m., as well as testimony that Father told a detective that he didn’t leave until 10:55 that morning. Since K.S. maintains that the window in which the injury could have been inflicted was several hours long, K.S. posits that Mother or Father could have inflicted the injury before they left for work. But again, on the question of timing, Dr. Christensen and Dr. Hatch both spoke of symptoms appearing very quickly after the fatal injury was inflicted. This testimony, alone, undermines this theory, and the juvenile court was entitled to credit it.

¶41 And there are other problems with this theory too. After all, K.S.’s suggestion that Mother or Father caused the injury that morning or overnight is at odds with their sworn testimonies. Again, both of them testified under oath that A.M. was healthy when they left the house. And it also seems possible (if not probable) that K.S. would have noticed something if Mother or Father had used violent force against A.M. that morning—after all, he’d spent the night there and was at the house all morning. But K.S. never claimed to have heard or witnessed either parent injuring A.M. earlier that day. Thus, to have accepted this theory, the court would have had to discredit the injury-to-symptoms chronology testimony of two medical experts, disbelieve the testimonies of Mother and Father, and then infer that Mother or Father had used violent force against A.M. without K.S. noticing or deciding to comment on it.

¶42 K.S. also points to evidence suggesting that A.M. had sustained a prior brain injury sometime before May 7, and he then argues that this prior injury might have been responsible for A.M.’s death. But while Dr. Christensen and Dr. Thorn both believed that A.M. had suffered multiple injuries, Dr. Hatch thought it was possible that there weren’t two injuries at all. Regardless, even assuming that the earlier injury did occur, K.S. could have inflicted that injury too given that he’d been babysitting for weeks. And more to the point, Dr. Christensen testified that the earlier injury wasn’t the cause of death. Dr. Christensen explained that both the earlier injury and the later injury had caused “subdural hemorrhage[s]” but that a subdural hemorrhage “didn’t ultimately lead directly to the child’s death.” Instead, Dr. Christensen testified that “diffuse axonal injury” in the brainstem created “respiratory compromise” that led to “brain swelling and ultimately death.” And when the prosecutor asked Dr. Christensen whether the “fatal” or “ultimately fatal” injury occurred close in time to A.M. arriving at the hospital, Dr. Christensen agreed with the State’s timeline. He reiterated that after the infliction of the “traumatic axonal injury,” which he had previously identified as the ultimate cause of death, symptoms would appear “essentially immediately.”[5]

¶43                Finally, K.S. points to various problems with the version of

events offered by Mother and Father, including Mother’s decision not to take the baby to the hospital that afternoon, Father’s seemingly odd storytelling while waiting for detectives that night, and certain discrepancies between the parents’ initial statements to officers and their testimonies at trial. We’ve reviewed the record and acknowledge the potential problems identified by K.S. But these problems all go to the perceived credibility (or lack thereof) of Mother and Father, particularly as it relates to their sworn testimonies that they did not injure their child. Our supreme court, however, has directly cautioned the appellate courts to avoid second-guessing lower courts about credibility issues like these. As the court explained in In re Z.D.:

Appellate courts are removed temporally and geographically from trial courts. They do not see juries impaneled or oaths administered to witnesses. They do not view first-hand witnesses’ “tells” of posture, inflection, or mood that strengthen or erode credibility. It is the lot of appellate judges to take their sustenance from the printed page; to peer into the facts as deeply as the flat plane of paper will permit. By the time the trial transcript reaches the hands of the appellate judge, the universal adjective describing its condition is “cold.”

2006 UT 54, ¶ 24, 147 P.3d 401. It’s of course possible that the court could have chosen to disbelieve the testimonies of Mother and Father. But given its adjudication, it’s clear that the court did accept their accounts (or, at least, those portions that suggested that it was K.S., not Mother or Father, who inflicted the fatal injury on A.M.). Without something more, it’s not our place to second-guess that determination.

¶44      In short, this evidentiary picture could certainly have been clearer, and we do see this as something of a close case. But the fact that it’s a close case is the reason we shouldn’t overturn this adjudication. In In re Z.D., our supreme court stressed that an “appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require the court’s intercession. It must forebear disturbing the ‘close call.’” Id. ¶ 33. And again, under even the standard of review that both parties agree on, K.S. must convince us that the verdict was against “the clear weight of the evidence,” or, instead, we must be left with “a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (emphases added, quotations otherwise simplified).

¶45      On this record, the juvenile court could have sided with K.S. based on certain evidence about the timing of the injuries and who was around A.M. during a potentially relevant window. But the State’s narrower view of the timing window was backed by two medical experts, and its view of who was where and when was backed by sworn testimony as well. And under the State’s evidence, K.S. was the only person who could have caused the fatal injury.

¶46      Unlike members of this court, the juvenile court observed the relevant testimony firsthand. As a result, it was in a better position than we are to evaluate the credibility of that testimony and make determinations about the key facts. While K.S. has highlighted some problems with the State’s case, we don’t see those problems as being so pronounced that the court’s decision was against the clear weight of the evidence, nor are we left with a definite and firm conviction that a mistake has been made. We accordingly see no basis for overturning this adjudication.

CONCLUSION

¶47 There was sufficient evidence to support the juvenile court’s adjudication that K.S. committed child abuse homicide. The adjudication is therefore affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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